Bush, In re, 7426-1-I

• Decision Date: 23 June 1980
• Docket Number: No. 7426-1-I,7426-1-I
• Citation: 616 P.2d 666,26 Wn.App. 486
• Parties: In re Eddie Joe BUSH, Petitioner.
• Court: Washington Court of Appeals

Page 486

26 Wn.App. 486

616 P.2d 666

In re Eddie Joe BUSH, Petitioner.

No. 7426-1-I.

Court of Appeals of Washington, Division 1.

June 23, 1980.

Reconsideration Denied July 17, 1980.

Wayne Lieb, Sally Harrison, Institutional Legal Services Project, Walla Walla, Dan Stormer, Spokane Legal Services Center, Spokane, for appellant.

Slade Gorton, Atty. Gen., Stephen J. Hosch, Nate D. Mannakee, Asst. Attys. Gen., Olympia, Norman K. Maleng, King County Pros. Atty., J. Robin Hunt, Deputy Pros. Atty., Seattle, for respondent.

RINGOLD, Judge.

Eddie Joe Bush seeks review by personal restraint petition of a decision of the Board of Prison Terms and Paroles (Parole Board) setting a 7 1/2-year mandatory minimum term of confinement pursuant to RCW 9.95.040(2).

Bush was charged by information with having committed the crime of robbery while armed with a deadly weapon as defined in RCW 9.95.040 and a firearm pursuant to RCW 9.41.025. He was found guilty following a trial to the court with special findings that he was armed with a deadly weapon and firearm. The trial court also determined

(t)hat no evidence of prior crimes of violence as defined in RCW 9.41.010 and implied in RCW 9.41.025, was offered or admitted in this case; nor was there any evidence of crimes defined by RCW 9.95.040.

Conclusion of law No. 5. Bush was sentenced to imprisonment under the jurisdiction and supervision of the Department of Social and Health Services for a maximum term of 20 years.

The Parole Board set a minimum term of confinement of 7 1/2 years, stating:

Board Decision: The panel has met with him today to set a minimum term on King County Cause # 77100. This term will be 7 1/2 years (all of which are mandatory).

Reasons for Decision: Mr. Bush has a very pleasant manner, however, we felt that he did rationalize the seriousness of his behavior. Because of his past record of being armed, we feel that he is a threat to society, and therefore, the minimum term.

While the precise basis of the Parole Board's decision is not clear, the parties agreed during oral argument that the Parole Board was proceeding under the mandatory sentencing provisions of RCW 9.95.040(2), which places the following limitation on it:

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 Parole Board considered the statements from the sentencing judge and prosecutor, and based upon an FBI "rap sheet" determined that Bush had been convicted previously in the state of California of possession of marijuana for sale in 1968, assault with a deadly weapon in 1969, and felon in possession of a gun in 1971. Because Bush had been convicted previously and there was a special finding pursuant to RCW 9.95.015 that during the commission of the robbery he was armed with a deadly weapon, the Parole Board set a mandatory minimum term of 7 1/2 years.

DUE PROCESS REQUIREMENTS UNDER RCW 9.95.040(2)

In his personal restraint petition, Bush contends that the setting of the mandatory minimum term of 7 1/2 years was a violation of due process. He argues that due process requires that: (1) the information allege he was armed with a deadly weapon and he had been previously convicted of a felony before the State can rely on RCW 9.95.040(2); (2) the information be separate from that charging the underlying offense and not be presented to the jury during a trial on the underlying offense; (3) he received a jury trial on all issues concerning whether he was armed with a deadly weapon and was previously convicted of a felony; (4) the State prove beyond a reasonable doubt that (a) the previous felony conviction based upon a plea of guilty was voluntary, and (b) he is the person who committed the previous felony; and (5) he be afforded counsel, the rights to subpoena and cross-examine witnesses and discover evidence. In summary, Bush argues that due process requires that he be given all procedural rights afforded a defendant in a habitual criminal proceeding and criminal prosecution before the Parole Board can set a mandatory minimum term of 7 1/2 years. ¹

Bush relies upon the general rule stated in State v. Cosner, 85 Wash.2d 45, 50, 530 P.2d 317, 321 (1975):

The appellate courts of this state have held that when the State seeks to rely upon either RCW 9.41.025 or RCW 9.95.040, or both, due process of law requires that the information contain specific allegations to that effect, thus putting the accused person upon notice that enhanced consequences will flow with a conviction. State v. Frazier, 81 Wash.2d 628, 503 P.2d 1073 (1972); State v. Pringle, 83 Wash.2d 188, 517 P.2d 192 (1973); State v. Mims, 9 Wash.App. 213, 511 P.2d 1383 (1973); Miller v. Morris, 10 Wash.App. 694, 519 P.2d 1314 (1974); State v. Smith, 11 Wash.App. 216, 521 P.2d 1197 (1974). Failure of the State to so allege precludes reliance upon the statutes by the trial court or the Board of Prison Terms and Paroles.

Accord, State v. Workman, 90 Wash.2d 443, 584 P.2d 382 (1978); State v. Tuttle, 26 Wash.App. 382, 612 P.2d 823 (1980). Our analysis of the holding and application of this rule starts with State ex rel. Alldis v. Board of Prison Terms and Paroles, 56 Wash.2d 412, 353 P.2d 412 (1960), where the court held that the failure to allege in the information that the defendant was armed with a deadly weapon did not preclude the Parole Board from setting a mandatory 5-year term pursuant to RCW 9.95.040(1) based upon its independent investigation. Subsequent to Alldis, the legislature amended RCW 9.95 by adding RCW 9.95.015, which provides:

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 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 State v. Coma, 69 Wash.2d 177, 417 P.2d 853 (1966), the court stated that this statute may be read in two ways: either as an exclusive formula of the method of ascertaining the facts or as a further aid to the Parole Board and further gloss on Alldis. The court ascertained the legislative intent and held that the Board was not entitled to make an independent finding as to whether the defendant was armed with a deadly weapon at the time of the commission of the offense, and that "the Board is not required to impose the mandatory minimum sentence in the absence of a specific finding by the trial judge or a special verdict by the jury." State v. Coma, supra at 186, 417 P.2d at 859. After Coma it was clear that the Parole Board could not make an independent factual determination as to whether the defendant was armed with a deadly weapon at the time of the commission of the offense for purposes of RCW 9.95.040 as had been held to be constitutional in Alldis.

In State v. Frazier, 81 Wash.2d 628, 503 P.2d 1073 (1972), the court further restricted the application of Alldis. In Frazier, the trier of fact returned a special verdict that at the time of the commission of second-degree assault, Frazier was armed with a deadly weapon. He was thereafter sentenced under RCW 9.41.025 to a mandatory 5 years. In remanding for resentencing, the Supreme Court held that because the information did not allege Frazier was subject to the added penalty under RCW 9.41.025(1), it was a violation of due process to impose the enhanced penalty. The court distinguished Alldis, stating that Different considerations affecting due process may be present when courts deal with actions of a parole board where defendant has already been convicted and sentenced to the custody of the appropriate state agency as distinguished from those matters which occurred prior to the imposition and execution of trial, judgment and sentence. . . .

In this case we are dealing with a factual determination which, if determined adversely to the appellant, irrevocably forbids the court from exercising its independent judgment concerning whether the appellant is to receive a deferred or suspended sentence. . . . This determination is all made prior to the imposition of final judgment and sentence. Procedural due process of the highest standard must, therefore, be afforded the appellant.

(Footnote omitted. Italics ours.) State v. Frazier, supra at 633-34, 503 P.2d at 1077. The court held that due process requires the State to allege and prove that the defendant was armed with a firearm before the enhanced penalties of RCW 9.41.025 could be applied, stating:

Where a factor aggravates an offense and causes the defendant to be subject to a greater punishment than would otherwise be imposed, due process requires that the issue of whether that factor is present, must be presented to the jury upon proper allegations and a verdict thereon rendered before the court can impose the harsher penalty.

State v. Frazier, supra at 633, 503 P.2d at 1077.

The rule as stated in Frazier is nearly verbatim from State v. Nass, 76 Wash.2d 368, 456 P.2d 347 (1969), where the court held that an enhanced punishment could not be imposed by the trial court because the defendant sold a narcotic drug to a minor when the State did not allege and prove the enhancement factor.

The cases decided after Frazier and Nass and relied upon in State v. Cosner, supra have consistently applied the rule that due process requires enhancement factors to be properly pleaded and...