In re Quackenbush

• Decision Date: 01 February 2001
• Docket Number: No. 68566-5.,68566-5.
• Parties: In the Matter of the Personal Restraint of Larry A. QUACKENBUSH, Petitioner.
• Court: Washington Supreme Court

16 P.3d 638

142 Wash.2d 928

In the Matter of the Personal Restraint of Larry A. QUACKENBUSH, Petitioner.

No. 68566-5.

Supreme Court of Washington, En Banc.

Argued June 22, 2000.

Decided February 1, 2001.

Nielsen, Broman & Associates, Eric Broman, Eric Nielsen, Seattle, for Petitioner.

Christine Gregoire, Atty. Gen., Heather Klein, Asst. Atty. Gen., Olympia, for Respondent.

MADSEN, J.

In this personal restrain petition, petitioner Larry Quackenbush challenges the authority of the Indeterminate Sentence Review Board (Board) to rescind its final discharge order under the 1993 amendment to the final discharge statute, RCW 9.96.050. The Board returned Quackenbush to the custody of the Department of Corrections when it discovered Quackenbush had violated his parole. We hold that a final discharge issued under RCW 9.96.050 does not divest the Board of authority to rescind the final discharge of an offender who violates the conditions of parole prior to final discharge. Accordingly, we affirm the Court of Appeals' order dismissing Quackenbush's petition.

FACTS

Quackenbush was convicted of second-degree murder in 1980 and sentenced to a maximum term of 30 years in prison. He was initially paroled in August 1985, but parole was revoked after he committed parole violations. Three years later, in April 1988, Quackenbush was again released on parole, this time to California where he had family. He was again charged with violating the conditions of his parole, but the Board reinstated Quackenbush's parole on September 2, 1989.

Quackenbush continued to engage in criminal activities. In January 1993, he committed three robberies and possessed a firearm and heroin in violation of the conditions of his parole. Prosecutors in three separate California counties charged Quackenbush for these felonies. Between May 1993 and April 1994, Quackenbush was tried, convicted, and subsequently sentenced to maximum terms ranging from one year to five years in prison.

Unaware of these recent California convictions the Board issued a final discharge to Quackenbush in July 1993 and restored his civil rights. See RCW 9.96.050. Two months later, in September 1993, the Board learned of Quackenbush's convictions and rescinded the final discharge order. The Board then issued a warrant suspending Quackenbush's parole, deferring action so that Quackenbush could serve his sentences in California.

In September 1998, Quackenbush was extradited to Washington. Following a parole revocation hearing in which Quackenbush admitted the alleged violations, the Board revoked parole and placed Quackenbush in the custody of the Washington State Department of Corrections. Quackenbush's maximum release date is now December 10, 2009.

Quackenbush filed a personal restraint petition in which he claimed that the Board lacked authority to rescind the final discharge which resulted in his return to prison. Chief Judge Bridgewater dismissed the petition, ruling that the Board had discretion to revoke parole any time before the expiration of Quackenbush's maximum sentence.

ANALYSIS

We are asked to decide whether the Board has authority to return a parolee to prison once a final discharge from parole is issued under RCW 9.96.050, the final discharge statute. Although this court has not interpreted the Board's authority following a 1993 amendment to the statute, the power of the Board under earlier versions of the statute has been the subject of a number of opinions.

The Board was created by statute in 1935.¹ See Laws of 1935, ch. 114 § 1; Rem.Rev. Stat. § 10249-1 (Supp.1947). Ten years later, in In re Application of Costello, 22 Wash.2d 697, 157 P.2d 713 (1945), this court considered whether the Board had authority under the 1935 statute to discharge an offender from all obligations imposed by the Governor's conditional pardon. Costello, 22 Wash.2d at 704, 157 P.2d 713. Recognizing that the statute dealt only with the Board's authority to parole, the court held that the Board did not have the power to issue a final discharge to an offender, which would relieve the defendant from serving any conditions added by the governor to the offender's sentence or to nullify the governor's right to revoke the defendant's pardon for a violation of such conditions. Costello, 22 Wash.2d at 705, 157 P.2d 713.

The court revisited the 1935 statute in Scott v. Callahan, 39 Wash.2d 801, 239 P.2d 333 (1951). The petitioner Scott had been sentenced to a term of not more than 15 years in prison. Scott, 39 Wash.2d at 802, 239 P.2d 333. After he served five years of his sentence, the Board released him on parole. Scott, 39 Wash.2d at 802, 239 P.2d 333. A year later, the Board issued a final discharge from supervision, releasing him from all obligations imposed by parole. Scott, 39 Wash.2d at 802, 239 P.2d 333. Four years later, the Board revoked Scott's parole because he engaged in conduct specifically prohibited by conditions of his parole. Scott, 39 Wash.2d at 803, 239 P.2d 333. Scott brought a habeas corpus petition, alleging the Board lost jurisdiction over him when it entered the final discharge.

This court affirmed the Board's continuing jurisdiction and its rescission of final discharge, holding that:

[t]he Board has no power, statutory or otherwise, to affect his maximum sentence in any matter. Its power is limited to permitting a convicted person to leave the enclosure of the penitentiary after he has served a period of confinement fixed for him by the Board in accordance with [the statute].

Scott, 39 Wash.2d at 804, 239 P.2d 333. The court observed that while the Board may discharge a parolee from parole conditions, the Board "cannot enlarge or extend the term fixed by the court's commitment, nor can it discharge a convict from custodia legis before the expiration of the maximum term for which he has been sentenced." Scott, 39 Wash.2d at 805, 239 P.2d 333 (citation and emphasis omitted) (citing In re Writ of Mandamus of Wyback, 32 Wash.2d 780, 203 P.2d 1083 (1949)). In other words, a final discharge was not the end of the sentence but rather the end of active supervision by the Board.

Against this backdrop, the Legislature enacted the final discharge statute, RCW 9.96.050. Laws of 1961, ch. 187, § 1. The former version of the statute stated in relevant part:

When a prisoner on parole has performed the obligations of his release for such time as shall satisfy the Board of prison terms and paroles that his final release is not incompatible with the best interests of society and the welfare of the paroled individual, the Board may make a final order of discharge ... to the prisoner: Provided, That no such order of discharge shall be made in any case within a period of less than one year from the date on which the board has conditionally discharged the parolee from active supervision by a probation and parole officer, except where the parolee's sentence expires earlier thereto.

Former RCW 9.96.050 (1961) (emphasis added.) Under the original version of the statute the Board had discretion to issue a final discharge from active parole, provided the discharge was entered at least one year following an order of conditional discharge from active supervision. See former RCW 9.96.050. Furthermore, the Board had continuing jurisdiction over a person released on conditional parole. See Honore v. Wash. State Bd. of Prison Terms & Paroles, 77 Wash.2d 697, 700, 466 P.2d 505 (1970)

(holding that the Board does not lose jurisdiction by paroling a felon to the federal courts on a federal indictment, and that jurisdiction is retained until the expiration of the maximum sentence).

In 1993, the Legislature amended RCW 9.96.050, deleting the requirement of a one-year wait between the conditional and final discharge and providing that:

If not earlier granted, the board shall make a final order of discharge three years from the date of parole unless the parolee is on suspended or revoked status at the expiration of the three years.

Laws of 1993, ch. 140, § 4.²

Quackenbush does not claim that the Board lacked authority to issue a final discharge from parole. Instead, the parties disagree on the import of a final discharge from parole. Quackenbush argues that a final discharge divests the Board of jurisdiction, and that the Board therefore did not have the power to rescind the final discharge and return him to prison. He contends that Scott is no longer controlling because the 1993 amendment extinguishes the Board's discretionary power by making the final discharge of all parolees automatic after three years, except for those who have had parole suspended or revoked. In other words, Quackenbush reasons, the Board was not exercising discretion when it issued the final discharge from parole; instead, the Board was executing its statutorily mandated duty to discharge him. Thus, he argues, a final discharge divests the Board of power to revoke parole, even if an offender admits to committing acts prior to the final discharge which constitute violations of conditions of his parole. The State responds that Quackenbush has confused a final discharge from parole with a reduction in sentence, and that the Board does not have the power to reduce sentences. The State relies only on cases that predate the 1993 amendment to RCW 9.96.050 for that proposition. We note, however, that this Court has consistently held that the Board lacks the power to reduce, increase, or otherwise alter the maximum sentence imposed by the trial court. In re Personal Restraint of Ayers, 105 Wash.2d 161, 167, 713 P.2d 88 (1986); Honore, 77 Wash.2d 697,466 P.2d 505; In re Writ of Habeas Corpus of Mason, 42 Wash.2d 610, 615, 257 P.2d 211,cert. denied, 346 U.S. 901, 74 S.Ct. 229, 98 L.Ed. 401 (1953); Scott, 39 Wash.2d 801,239 P.2d 333.

Statutory construction is a question of law which we review de novo. State v. Martin, 137 Wash.2d 774, 788, 975 P.2d 1020 (1999). Our principal duty is to "ascertain and give effect to the...