Knapp, Matter of

• Decision Date: 06 September 1984
• Docket Number: No. 50448-2,50448-2
• Citation: 687 P.2d 1145,102 Wn.2d 466
• Parties: In the Matter of the Personal Restraint Petitions of Robert A. KNAPP, and Jesse D. Wallin, Sr., Petitioners.
• Court: Washington Supreme Court

Page 466

102 Wn.2d 466

687 P.2d 1145

In the Matter of the Personal Restraint Petitions of Robert A. KNAPP, and Jesse D. Wallin, Sr., Petitioners.

No. 50448-2.

Supreme Court of Washington En Banc.

Sept. 6, 1984.

Evergreen Legal Services, Robert Stalker, Seattle, for petitioners.

Ken Eikenberry, Atty. Gen., Douglas D. Walsh, Asst. Atty. Gen., Olympia, Paul A. Klasen, Grant County Prosecutor, Jerald R. Hamley, Deputy Pros. Atty., Ephrata, for respondent.

BRACHTENBACH, Justice.

Must time spent confined in a state mental hospital pursuant to a valid criminal conviction be credited against the offenders subsequently imposed mandatory maximum and minimum discretionary sentences? That is the issue these consolidated personal restraint petitions present. We hold that the equal protection clause requires that credit be given for the time each petitioner spent committed as inpatients at Eastern State Hospital (ESH). Because of our disposition of the issue we need not decide whether the double jeopardy clause or the state Law Against Discrimination, RCW 49.60.030, prohibits the denial of credit.

Petitioner Knapp pleaded guilty to possessing stolen property (a motor vehicle) in the second degree in 1978. The court deferred imposing the maximum sentence, 5 years, and placed the petitioner on 36 months' probation. As a condition of probation petitioner was ordered to enter and successfully complete a program at ESH. Knapp was found to be in need of mental health treatment because he was suffering from irresistible impulse to steal cars. The trial judge ordered Knapp immediately transported to ESH; Knapp was committed that same day.

Over the next 31 months Knapp progressed to work release status, but in November 1981 he left the hospital without authorization. He then stole a taxi cab in downtown Spokane and after a high speed chase was apprehended. Knapp's probation was then revoked and the original 5-year sentence was reinstated.

The Board of Prison Terms and Paroles (the Board), set his discretionary minimum term at 39 months, 18 months above the guidelines. The Board's principal written reason for this term was that Knapp had participated in a court-ordered treatment program for the commitment offense, but immediately reoffended with a crime similar to the commitment offense. The Board set his maximum expiration date at September 20, 1986. The Board credited both sentences with 140 days Knapp spent in county jail, but denied any sentence credit for the time Knapp spent at ESH during his probation.

Petitioner Wallin was charged with second degree assault and second degree statutory rape. The prosecutor filed a petition of sexual psychopathy. RCW 71.06.020. On May 2, 1980, after a jury verdict of guilty on both counts, the trial court imposed the maximum sentence for each count, 10 years, which were to run consecutively. The court, however, suspended the sentences, and ordered the petitioner committed to ESH for a 90-day observation period to determine the allegation of sexual psychopathy. See RCW 71.06.040.

On July 31, 1980 the petitioner was returned to the court with a report from ESH that the petitioner was not a sexual psychopath. Despite this recommendation, the trial court independently concluded that the petitioner was a sexual psychopath and ordered his commitment to ESH for detention, care and treatment. See RCW 71.06.060.

One month later petitioner was returned to the county jail because he was found not amenable to treatment and not safe to be at large. The trial judge then put petitioner on probation and as a condition, ordered him to enroll in the sexual offender's program at ESH. His probation was revoked when he failed to comply with this condition.

Wallin spent 2 months 24 days in ESH under the May 2, 1980 observation/evaluation commitment. The Board has interpreted "jail time" to include time spent under commitment in the state hospitals for observation and evaluation under RCW 71.06.040. Therefore, the observation/evaluation period, along with all jail time served by Wallin, totaling 490 days, was credited toward both his mandatory maximum and discretionary minimum terms pursuant to State v. Phelan, 100 Wash.2d 508, 671 P.2d 1212 (1983) (Phelan II); In re Phelan, 97 Wash.2d 590, 647 P.2d 1026 (1982) (Phelan I); and Reanier v. Smith, 83 Wash.2d 342, 517 P.2d 949 (1974).

Wallin spent an additional 33 days in ESH for "treatment" under the July 31, 1980 commitment order. The Board credited this 33-day period towards the petitioner's maximum term pursuant to RCW 71.06.120 ¹ but refused to credit it against his discretionary minimum term.

Both petitioners filed separate personal restraint petitions in the Court of Appeals, arguing that the Board erred in denying them credit for their respective hospital time. The county respondent, in response to Knapp's petition, argued that he was not entitled to credit towards his mandatory maximum term. The Board, in response to both petitions, argued that neither petitioner was entitled to credit against their discretionary minimum sentences. The cases were consolidated and certified to this court pursuant to RCW 2.06.030(d).

I

While this court has never addressed whether "nonjail" custodial confinement in a state facility pursuant to a valid criminal conviction must be credited against an individual's prison term, we have previously dealt with the issue of sentence credit.

In Reanier v. Smith, 83 Wash.2d 342, 517 P.2d 949 (1974), we held that the denial of credit against the maximum and mandatory minimum terms for pretrial detention is unconstitutional. We stated:

Furthermore, our statutes, RCW 9.95.062 and RCW 9.95.063, provide for detention credit pending the appeal of a conviction as well as credit for time served prior to a resentencing where a new trial has been granted.

We can see no practical, realistic or substantive difference between time spent in pretrial detention for want of bail and time spent in detention pending an appeal of a conviction or time spent under a subsequently vacated and reinstated sentence. It is all time spent in confinement ...

* * *

"We conclude that considerations of ... equal protection ... dictate that presentence jail time be credited against maximum and mandatory minimum terms where applicable. Accordingly, pretrial detention time should be administratively credited ..."

(Footnotes omitted. Italics ours.) Reanier, at 351-53, 517 P.2d 949.

One petitioner in Reanier, convicted of second degree assault, was seeking credit for the 23 months he spent in both the county jail and Western State Hospital prior to judgment and sentence. Neither this court nor the parties treated this fact as a distinguishing point in terms of sentence credit. See Reanier, at 343. See also In re Quinlivan, 22 Wash.App. 240, 243 n. 1, 588 P.2d 1210 (1978) (Reanier requires credit for petitioner's pretrial incarceration in Eastern State Hospital).

Reanier was followed in State v. Hultman, 92 Wash.2d 736, 600 P.2d 1291 (1979) and In re Phelan, 97 Wash.2d 590, 647 P.2d 1026 (1982). These two decisions hold that jail time served as a condition of probation must also be credited against the subsequently imposed mandatory minimum and maximum prison terms.

However, both cases rejected the contention that time served under the restrictions of probation but "not in actual detention", Phelan I, at 592, 647 P.2d 1026, must also be similarly credited.

To allow credit for probationary time represents a change in policy of criminal sentencing from that of reinstating the original sentence upon revocation of an order of suspension.... [A]ny change in this policy should be made by the legislature.

(Footnotes and citations omitted.) Hultman, 92 Wash.2d at 742-43, 600 P.2d 1291 (probation conditions: fine, good behavior, payment of child support); accord, In re Phelan, 97 Wash.2d at 597-98, 647 P.2d 1026 (probation conditions: abstain from alcohol, seek alcohol rehabilitation and observe all laws of State). Thus Reanier, Hultman, and Phelan I recognize a clear constitutional distinction between credit for "jail time" and credit for "nondetention" time. These decisions stand for the general proposition that credit for nonjail probation time is a matter for the Legislature and a denial of credit for that time is not unconstitutional.

Reanier was most recently followed in State v. Phelan, 100 Wash.2d 508, 671 P.2d 1212 (1983) (Phelan II). Phelan II held that under the equal protection clause and the double jeopardy clause, discretionary minimum terms must also be credited for all "jail time" served. Phelan II, at 513-17, 671 P.2d 1212.

Phelan II, noting the recent Supreme Court decision in Plyler v. Doe, 457 U.S. 202, 72 L.Ed.2d 786, 102 S.Ct. 2382 (1982), found that a denial of presentence jail time involved both a deprivation of liberty in addition to that which would otherwise exist, and a classification based solely on wealth. Therefore, the court applied an intermediate level of scrutiny; requiring the denial of credit to be fairly viewed as furthering a substantial interest of the State. This court concluded that the denial of credit could not be fairly viewed as furthering the state's interest in rehabilitation and, therefore, did not meet the enhanced review that was applicable. Phelan II, 100 Wash.2d at 512-14, 671 P.2d 1212.

With this precedent in mind we reiterate that credit for nonjail probation time is properly a matter for the Legislature. However, while not directly addressing probationary time credit, the Legislature has addressed the issue of credit for hospital time, thereby providing guidance.

In general, if a person convicted of a crime and incarcerated in a correctional facility or institution is determined to be in need of mental health assistance, he can be "transferred or moved for observation, diagnosis or treatment to any state institution or facility for the care of the mentally ill ...". RCW 72.68.031. Once...