Brooks v. Rhay, 46215
| Decision Date | 08 November 1979 |
| Docket Number | No. 46215,46215 |
| Citation | 602 P.2d 356,92 Wn.2d 876 |
| Parties | Danny BROOKS, Petitioner, v. B. J. RHAY, Superintendent, Washington State Penitentiary et al., Respondents. |
| Court | Washington Supreme Court |
Spokane Legal Services Center, Dan Stormer, Spokane, Institutional Legal Services, Sally Harrison, Walla Walla, John Midgley, Seattle, Seattle-King County Public Defender Assc., John G. Ziegler, Seattle, for petitioner.
Slade Gorton, Atty. Gen., Nate Mannakee, Asst. Atty. Gen., Olympia, Arthur R. Eggers, Walla Walla County Pros. Atty., Walla Walla, for respondents.
This matter involves a petition for writ of habeas corpus challenging the action of the Board of Prison Terms and Paroles in unilaterally changing an illegal sentence. The trial court dismissed the petition for writ of habeas corpus and Division Three of the Court of Appeals affirmed the trial court's dismissal.
It appears from the records herein that the sentencing judge expressly ordered that the petitioner's sentence was to run concurrently with a previously imposed sentence. By doing so, the sentencing judge clearly intended to show the petitioner some leniency. However, it is undisputed that the sentencing judge acted contrary to law in ordering the sentences to run concurrently. 1 The board responded to this situation by determining the two sentences would run consecutively.
It has been the consistent holding of this court that the existence of an erroneous sentence requires resentencing. Dill v. Cranor, 39 Wash.2d 444, 235 P.2d 1006 (1951); State v. Pringle, 83 Wash.2d 188, 517 P.2d 192 (1973). The case of In re Clark, 24 Wash.2d 105, 163 P.2d 577 (1945), is not to the contrary. There the court held where a sentence is legal in one part and illegal in another, the illegal part, if separable, may be disregarded and the legal part enforced. The sentence at issue in Clark erroneously assigned responsibility to the "Parole Board" to set the defendant's minimum sentence, though the board had in fact been dissolved at the time. Since the Board of Prison Terms and Paroles would by statutory authority then set the defendant's minimum sentence, the remainder of the sentence could be imposed with no frustration of the court's purpose. Here, by contrast, the trial court sentence is indivisible in that the court set sentences upon the assumption they would be served concurrently.
Had the trial court been aware that it could not legally sentence the petitioner to prison except under a consecutive sentence, the trial court's leniency could well have been expressed in a suspended or deferred sentence. A contrary result was reached when the Board of Prison Terms and Paroles imposed upon the petitioner the severe sanction of a...
To continue reading
Request your trial
-
In re Call
...also State v. Mail, 121 Wash.2d 707, 710, 854 P.2d 1042 (1993). 77. Ford, 137 Wash.2d at 485, 973 P.2d 452 (quoting Brooks v. Rhay, 92 Wash.2d 876, 877, 602 P.2d 356 (1979)). 78. ...
-
State v. Ford
...has been the consistent holding of this court that the existence of an erroneous sentence requires resentencing." Brooks v. Rhay, 92 Wash.2d 876, 877, 602 P.2d 356 (1979) (citing cases). This rule extends to the imposition of an exceptional sentence under the SRA where, as here, an incorrec......
-
In re Forcha-Williams
...exceptional sentence under the SRA after using an incorrect offender score to calculate the standard range) (quoting Brooks v. Rhay, 92 Wash.2d 876, 877, 602 P.2d 356 (1979) )). In Call, the court imposed a low end sentence based on an inaccurate offender score. Id. at 318, 28 P.3d 709. The......
-
State v. Smissaert
...Increased Sentence In the past, this court has required resentencing to correct invalid sentences. See e.g. Brooks v. Rhay, 92 Wash.2d 876, 602 P.2d 356 (1979); State v. Pringle, 83 Wash.2d 188, 517 P.2d 192 (1973); Dill v. Cranor, 39 Wash.2d 444, 235 P.2d 1006 (1951). Similarly, we have re......
-
Table of Cases
...on denial of reconsideration sub nom. Broer v. State, 973 P.2d 1074, review denied, 138 Wn.2d 1014 (1999): 4.3(1)(a) Brooks v. Rhay, 92 Wn.2d 876, 602 P.2d 356 (1979): 24.9(1) Broom v. Morgan Stanley DW Inc., 169 Wn.2d 231, 236 P.3d 182 (2010): 11.11 Brouillet v. Cowles Publ'g Co., 114 Wn.2......
-
§ 24.9 Related Remedies in Superior Court
...petition. RCW 7.36.130 (habeas); RAP 16.4(c)(2) (personal restraint). Other examples include claims of sentencing errors, Brooks v. Rhay, 92 Wn.2d 876, 602 P.2d 356 (1979) (habeas); In re Moore, 116 Wn.2d 30, 803 P.2d 300 (1991) (personal restraint); and some challenges to actions of the In......