Mayner, Matter of

• Decision Date: 31 December 1986
• Docket Number: No. 52167-1,52167-1
• Citation: 730 P.2d 1321,107 Wn.2d 512
• Parties: In the Matter of the Personal Restraint of Gary L. MAYNER, Petitioner.
• Court: Washington Supreme Court

Page 512

107 Wn.2d 512

730 P.2d 1321

In the Matter of the Personal Restraint of Gary L. MAYNER, Petitioner.

No. 52167-1.

Supreme Court of Washington En Banc.

Dec. 31, 1986.

Kenneth Eikenberry, Atty. Gen., Kathleen D. Spong, Michael P. Lynch, Marc Barreca, Steven L. Abel, Asst. Attys. Gen., Olympia, for petitioner.

Snohomish County Public Defender Ass'n, Kim Earl Dupuis, Everett, for respondent.

GOODLOE, Justice.

The Court of Appeals, Division One, granted Gary L. Mayner's personal restraint petition challenging RCW 9.95.115 because it found that RCW 9.95.115 was unconstitutional as it violated the equal protection clause. In re Mayner, 41 Wash.App. 598, 705 P.2d 284 (1985). Washington State Board of Prison Terms and Paroles appeals. We reverse.

Mayner was convicted of first degree murder on September 30, 1969. He was sentenced to life imprisonment on October 3, 1969, and received a mandatory minimum term of 20 years less earned good time. State v. Mayner, 4Wash.App. 549, 483 P.2d 151, review denied, 79 Wash.2d 1008 (1971).

Pursuant to RCW 9.95.115, a person under a mandatory life sentence is required to be continuously confined for 20 consecutive years less good time before the Board has the authority to grant parole. Mayner's earliest possible release date under his original sentence would have been October 14, 1982, 13 years and 4 months from the date he was arrested for murder.

In December 1980, Mayner was transferred to a work release program. In March 1981, Mayner failed to return to the work release facility. He was apprehended in October 1981 after having committed several crimes during his escape. Mayner later pleaded guilty to, was convicted of, and received prison sentences for, first degree attempted kidnapping, second degree theft, and second degree possession of stolen property. Mayner also pleaded guilty to first degree escape. For this offense he received a suspended 10-year sentence.

Following a hearing in 1982, the Board determined that pursuant to RCW 9.95.115 Mayner was not entitled to credit his 20-year mandatory minimum sentence with the 11 years, 8 months he had already served on the murder conviction prior to his escape. The Board determined that, until Mayner had been confined continuously for 20 years less good time, he would not become eligible for parole. Consequently, the Board restarted Mayner's mandatory minimum 20-year sentence less good time on October 6, 1981, the date of his rearrest. Mayner sought relief from the Board's decision by filing a personal restraint petition with the Court of Appeals, Division One.

The petition involved three challenges to RCW 9.95.115, but the Court of Appeals addressed only one. The Court of Appeals held that RCW 9.95.115 was unconstitutional because it violated equal protection. In re Mayner, supra. We granted discretionary review. Because we hold RCW 9.95.115 does not violate equal protection, it is necessary also to address the other two challenges raised by Mayner.

We must first decide whether the Court of Appeals erred in finding that the restart statute, RCW 9.95.115, violated equal protection guaranties. RCW 9.95.115 reads, in part:

The board of prison terms and paroles is hereby granted authority to parole any person sentenced to the penitentiary or the reformatory, under a mandatory life sentence, who has been continuously confined therein for a period of twenty consecutive years less earned good time ...

(Italics ours.)

RCW 9.95.115 withstood an earlier equal protection challenge in In re George, 90 Wash.2d 90, 579 P.2d 354 (1978). The facts in George are similar to the facts here. In that case the petitioner was convicted of first degree murder and sentenced to life imprisonment. The petitioner was nearing his parole eligibility date when he escaped. Petitioner was caught and subsequently informed that pursuant to RCW 9.95.115 he would not become eligible for parole until 20 years after the date of his recapture less allowable good time.

In construing RCW 9.95.115 the George court stated the words " 'continuous' " and " 'consecutive' " are unambiguous and "clearly dictate that the period of confinement required under the act shall not be broken by any period of absence from the control of the custodian." George, at 92, 579 P.2d 354. "[I]t was the expressed legislative intent that if a prisoner escaped the penitentiary ... before the expiration of 20 years, his mandatory nonwaivable minimum term should be calculated from the date he was returned to the institution." George, at 92-93, 579 P.2d 354.

The George court specifically rejected the equal protection challenge and argument made by petitioner that RCW 9.95.115 improperly treats escapees serving life sentences for murder in the first degree more harshly than other prison escapees. We find no difficulty in perceiving the legislative purpose in imposing a stricter requirement of confinement upon persons serving mandatory life sentences than on persons serving lesser sentences.

... There is a significant difference between the petitioner's crime and those lesser crimes which are not subject to mandatory life imprisonment sentences. Equal protection does not require identity of treatment, if there is reasonable ground for a difference in policy.

... Such a ground is present here.

(Italics ours. Citation omitted.) George, at 93, 579 P.2d 354.

The George court upheld RCW 9.95.115 after applying the rational basis test, which is the minimal level of scrutiny applied in equal protection cases. Under the rational basis test a challenged law will be upheld " 'unless it rests on grounds wholly irrelevant to the achievement of a legitimate state objective.' " State v. Phelan, 100 Wash.2d 508, 512, 671 P.2d 1212 (1983) (Phelan II); see Nielsen v. Washington State Bar Ass'n, 90 Wash.2d 818, 820, 585 P.2d 1191 (1978).

Notwithstanding George, the Court of Appeals in this case invalidated RCW 9.95.115 on equal protection grounds. The Court of Appeals stated that the George court did not consider a line of cases which in combination hold that equal protection and double jeopardy principles require credit for presentence and post-sentence probationary jail time against (a) maximum sentences, (b) mandatory minimum sentences, and (c) minimum discretionary sentences. In re Mayner, 41 Wash.App. at 601, 705 P.2d 284. See Reanier v. Smith, 83 Wash.2d 342, 517 P.2d 949 (1974); In re Phelan, 97 Wash.2d 590, 647 P.2d 1026 (1982) (Phelan I); and Phelan II, supra.

The Court of Appeals primarily relied on this court's holding in Phelan II to distinguish George. In Phelan II the court used an intermediate level of scrutiny to review a denial of credit for presentence jail time against discretionary minimum terms because the following interests were implicated: (1) "a deprivation of liberty in addition to that which would otherwise exist" and, (2) "a classification based solely on wealth" (persons unable to post bail remained in jail while those with adequate security remained free pending trial). Phelan II, 100 Wash.2d at 514, 671 P.2d 1212. For a law tobe held constitutional under the intermediate scrutiny test, it must be such as " 'may fairly be viewed as furthering a substantial interest of the State' ". See Phelan II, at 512, 671 P.2d 1212, quoting Plyler v. Doe, 457 U.S. 202, 217-18, 102 S.Ct. 2382, 2395, 72 L.Ed.2d 786 (1982). The Phelan II court found the State's interest in rehabilitating criminals, the only interest proffered by the State, was insufficient to satisfy the intermediate test. Phelan II, 100 Wash.2d at 514, 671 P.2d 1212. Consequently, the Phelan II court determined that the equal protection doctrine requires that all presentence jail time be credited against minimum discretionary sentences.

In view of Phelan II, the Court of Appeals held that RCW 9.95.115 failed to meet the intermediate test, notwithstanding this court's previous application of the rational basis test in George. The State argues that the George analysis is still viable and that a rational basis test should be applied. The State further argues that under either the rational basis or intermediate test equal protection concerns are satisfied.

We find the Phelan II equal protection analysis is inapplicable here because RCW 9.95.115 involves different interests. The Phelan II court, at page 514, 671 P.2d 1212, determined that denial of credit for presentence jail time involved (1) "a deprivation of liberty in addition to that which would otherwise exist" and (2) "a classification based solely on wealth". In comparison, this case involves (1) "a conditional liberty interest", In re Mayner, 41 Wash.App. 598, 602, 705 P.2d 284 (1985), and (2) a class of persons sentenced to mandatory life terms who at a minimum must serve at least 20 consecutive years in prison less credit for good time (which precludes escape during this period).

A "conditional liberty interest" is fundamentally different from an interest involving "a deprivation of liberty in addition to that which would otherwise exist." The Board's application of RCW 9.95.115 which restarted Mayner's 20-year mandatory period does not add to his original liberty deprivation. It is part of his original sentence. The Legislature has determined that persons convicted of first degree murder must serve 20 consecutive years less good time before they may become eligible for parole. RCW 9.95.115. Consequently, restarting Mayner's sentence does not deprive him of any liberty which would otherwise exist, since what would otherwise exist (had he not escaped) is the requirement that he serve 20 consecutive years. This remains Mayner's sentence after his escape.

Furthermore, the Phelan II court only applied the intermediate equal protection test when it analyzed credit for presentence jail time. It did not apply this test in its discussion of post-sentence probationary jail time. Since presentence jail time is not at issue in this case, Phelan II's...