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AGO 1963 No. 56 - September 12, 1963
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John J. O'Connell | 1957-1968 | Attorney General of Washington


OFFICES AND OFFICERS ‑- STATE ‑- BOARD OF PRISON TERMS AND PAROLES ‑- PERSON ARMED WITH DEADLY WEAPON AT TIME OF COMMISSION OF CRIME ‑- TERM OF CONFINEMENT ‑- SPECIAL VERDICT ‑- AUTHORITY OF BOARD TO MAKE INDEPENDENT INVESTIGATION.

(1) The "special verdict" contemplated by RCW 9.95.015 is the finding made by a jury and reported to the court that a person found guilty was "armed with a deadly weapon at the time of commission of the crime."

(2) Same:  There is no requirement that the board of prison terms and paroles be furnished with a copy of a special verdict on a finding of the court, it being sufficient if the sentence and judgement contains the necessary information.

(3) Same:  When a person is convicted of robbery and no finding of fact, or special verdict, is made pursuant to RCW 9.95.015, but there is evidence in the board's possession convincingly showing that such person was "armed with a deadly weapon at the time of the commission of the crime," the board must fix the minimum term of confinement of five years if such person has not been previously convicted of a felony.

(4) Same:  If there is no evidence whatsoever that a person convicted of robbery was armed with a deadly weapon at the time of the commission of the crime, the board is not required to fix the minimum term prescribed by RCW 9.75.010.

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

                                                              September 12, 1963

Honorable Harris G. Hunter
Chairman, Board of Prison Terms and Paroles
201 Institutions Building
Olympia, Washington

                                                                                                                Cite as:  AGO 63-64 No. 56

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on several questions which we paraphrase as follows:

            (1) What did the legislature intend by its use of the term "special verdict" as employed in § 1, chapter 138, Laws of 1961 (RCW 9.95.015)?

             [[Orig. Op. Page 2]]

            (2) Is the board of prison terms and paroles, by the provisions of § 1, chapter 138, Laws of 1961 (RCW 9.95.015), required to be furnished with a special document, aside from the judgment and sentence, which contains the "special verdict" referred to in the cited statute?

            (3) When a person is convicted of robbery (RCW 9.75.010), and no finding of fact, or special verdict, is made pursuant to § 1, chapter 138, Laws of 1961 (RCW 9.95.015), but there is evidence in the board's possession convincingly showing that such person was "armed with a deadly weapon at the time of the commission of the crime," is the board required to fix a minimum term of confinement of five years, if such person has not been previously convicted of a felony?

            (4) If there is no evidence whatsoever that a person convicted of robbery was armed with a deadly weapon at the time of the commission of the crime, must the board fix a minimum term of not less than five years in accordance with RCW 9.75.010, relating to the crime of robbery?

            We answer your first question as set forth in our analysis.  Your second and fourth questions are answered in the negative, and your third question in the affirmative, for the reasons stated in our analysis.

                                                                     ANALYSIS

            Question (1):

            RCW 9.95.015 (§ 1, chapter 138, Laws of 1961), provides as follows:

            "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 finds 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 3]]

            Obviously, the term "special verdict" is significant only in cases where the accused is tried by a jury upon the charges contained in the information or indictment.

            A "special verdict" is the decision of the jury, and reported to the court, upon separate issues of fact on matters lawfully submitted to the jury in the course of the trial, leaving the court thereafter to render such judgment as the facts so found may require.  State v. Williams, 30 Wn.2d 18, 190 P.2d 734 (1948).

            Thus, "special verdict" as contemplated by RCW 9.95.015, is simply a finding made by the jury, and reported to the court that the person found guilty was "armed with a deadly weapon at the time of the commission of the crime."

            Question (2):

            In answer to your second inquiry, we are of the opinion that although it might be convenient, or perhaps desirable, that the board of prison terms and paroles be furnished with a copy of the jury's "special verdict" or the court's "finding of fact" as referred to in RCW 9.95.015, the statute does not provide that the board is to be furnished with either of these documents.  We are of the opinion that it will be sufficient to enable the board to perform its functions if the judgment recites the jury's finding on the special verdict or the court's finding of fact in case the matter is tried before the court.

            It is generally held that in criminal actions the judgment is sufficient if it contains a fair and concise statement of the names of the parties, the character of the offense, the verdict, the sentence given thereon, and the penalty imposed, without setting out all the facts constituting the record.  24 C.J.S. 622, Criminal Law, § 1600; In re Clark, 24 Wn.2d 105, 163 P.2d 577 (1945).

            In connection with this inquiry, you have furnished us with a reproduced copy of a certified judgment of the Superior Court of the State of Washington for Grant County in the case ofState of Washington v. Louis Milner, Grant County Cause No. 2195, wherein the defendant entered a plea of guilty.  The decretal portion of the judgment recites:

            "IT IS HEREBY ORDERED, ADJUDGED AND DECREED That said Defendant is guilty of the crime of Robbery while armed with a deadly weapon, towit:  a rifle as charged in the Information herein, . . ."

            Such judgment, in our opinion, contains a sufficient recital of the  [[Orig. Op. Page 4]] court's finding of fact requiring the board of prison terms and paroles to act pursuant to the requirements and the limitations contained in RCW 9.95.040.

            Question (3):

            Your third inquiry raises the following question: Does the enactment of § 1, chapter 138, Laws of 1961 (cf. RCW 9.95.015), supra, have the effect of superseding the authority of the board of prison terms and paroles (under State ex rel. Alldis v. B. Prison, 56 Wn.2d 412, 353 P.2d 412 (1960)), to determine independently whether or not a convicted felon was armed with a deadly weapon at the time of commission of his crime in a case where no finding of fact or special verdict is entered?

            InAlldis v. Board, supra, the Washington supreme court was concerned with so much of RCW 9.95.040 as then provided:

            "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 either at the time of the commission of his offense, or a concealed deadly weapon at the time of his arrest, the duration of confinement shall not be fixed at less than five years."

            With regard to this provision the court held that the board of prison terms and paroles may conduct its own investigation of the case to determine whether or not a person convicted of a felony was armed with a deadly weapon at the time the crime was committed, stating:

            "All of the provisions of RCW 9.95.040 (1) cannot be given effect unless we hold that the parole board is authorized to conduct its own investigation of the facts to determine whether the prisoner is subject to the mandatory five‑year sentence.  Otherwise, as a practical matter, the provision would apply only when the fact that a felon was armed with a deadly weapon, appears in the information or judgment; . . ."  (56 Wn.2d 412, 417.)

             [[Orig. Op. Page 5]]

            Thereafter, by chapter 138, Laws of 1961, the legislature (1) established the requirement (RCW 9.95.015, supra,) of entry of a special verdict or finding of fact of whether or not the accused was armed with a deadly weapon at the time of commission of his alleged crime; and (2) amended portions of RCW 9.95.040,supra, which have no bearing on the question which you have presented.1/   For ease of reference § 1, chapter 138, Laws of 1961 (cf. RCW 9.95.015),supra, is here again set forth as follows:

            "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 finds 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."

            This statute does not purport to indicate the exclusive procedure for determining whether or not the accused was "armed with a deadly weapon at the time of the commission of the crime."  There is no clear-cut indication expressed therein that the legislature intended RCW 9.95.015 to supersede the authority and duty of the board of prison terms and paroles in making determinations as to whether or not the convicted person was armed with a deadly weapon at the time of the commission of the crime.

            Furthermore, RCW 9.95.015 is not clearly inconsistent with or repugnant to the provisions of RCW 9.95.040.  In fact, from a careful study of the language in these two statutory provisions, it would seem that the legislature intended that they be construed harmoniously and that RCW  [[Orig. Op. Page 6]] 9.95.015 was probably enacted for the purpose of aiding the board of prison terms and paroles in the determination of whether or not the convicted person was armed with a deadly weapon at the time of the commission of the crime.  As was said inState ex rel. Alldis v. Bd. Prison, supra:

            "If it had been the intent of the legislature to thus limit the investigative powers of the board, plain language was available to state that intent.  Such plain language is, in fact, used in other subdivisions [of RCW 9.95.040] where mandatory minimum sentences are prescribed for a person 'convicted' of being an habitual criminal and a person 'convicted' of embezzling funds from any institution of public deposit of which he was an officer or stockholder."  (p. 417.)

            Additionally, it should be observed also that RCW 9.95.170, 9.95.030 and 9.95.031 were relied on by the court in the Alldis case, supra, to sustain the board's independent investigatory power.  The fact that none of these statutes were changed by chapter 138, Laws of 1961, is indicative that the legislature did not intend that act to supersede the board's investigative powers.

            In criminal cases the information, with rare exceptions, need not allege that the accused was armed with a deadly weapon in order to charge the accused with the commission of a crime.  Further, such facts may not be a matter of knowledge available to the prosecuting attorney or law enforcement officials, and may not be discovered until after conviction as was the situation in State ex rel. Alldis v. Bd. Prison, supra.  Especially will this be true in cases where the accused enters a plea of "guilty."  We assume that the legislature in the enactment of chapter 138, Laws of 1961 (RCW 9.95.015 and 9.95.040), was aware of these facts and possibilities, and did not intend that there be a "sometimes" application of the sanctions and limitations of RCW 9.95.040, to be imposed in the fixing of minimum terms of confinement of those convicted persons who present a clear danger of physical harm to others, when in the commission of crimes they are armed with a deadly weapon.

            Consequently, we are of the opinion that § 1, chapter 138, Laws of 1961 (RCW 9.95.015) has not superseded the authority and duty of the board of prison terms and paroles to fix the specified minimum terms pursuant to RCW 9.95.040, as amended by § 2, chapter 138, Laws of 1961.  Therefore, in a case where the court has not made findings or the jury rendered a "special verdict" on the deadly weapon issue,  [[Orig. Op. Page 7]] and the board has before it evidence convincing to the minds of the members of the board that the convicted person was armed with a deadly weapon at the time of the commission of the crime, it must fix the specified minimum term required by RCW 9.95.040.

            Question (4):

            With regard to your final question, please be advised that this office has previously rendered an opinion to the board of prison terms and paroles under the date of June 25, 1948 [[1947-48 OAG 107b]], a copy of which is attached, which bears upon your question.  The issue in that opinion was whether the penal provision of RCW 9.48.040, which states,

            "Murder in the second degree shall be punished by imprisonment in the state penitentiary for not less than ten years."

            was a legal inhibition to the board's authority to fix minimum terms of confinement of less than ten years in such cases.  Our conclusion was in the negative, on the ground that the parole board act (chapter 114, Laws of 1935) had, by implication, repealed the minimum sentence provision of RCW 9.48.040, the parole board having been vested with authority by the act to fix minimum "durations of confinement" subject to the limitations of the act.  We adhere to our conclusion in the opinion of June 25, 1948.  Consistent with that opinion, we are of the opinion that the penal provision of the statute defining the crime of robbery, RCW 9.75.010, which states:

            ". . . Every person who shall commit robbery shall be punished by imprisonment in the state penitentiary for not less than five years."

            Does not constitute a legal inhibition to the fixing by the board of a minimum "duration of confinement" less than five years.

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

Very truly yours,

JOHN J. O'CONNELL
Attorney General

STEPHEN C. WAY
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Examination of the amendments to RCW 9.95.040 contained in § 2, chapter 138, Laws of 1961, reveals clearly that nothing contained therein affects the power of the board of prison terms and paroles with regard to fixing minimum sentences‑-i.e., the subject of your inquiry.

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