Myers, Matter of

• Decision Date: 13 February 1986
• Docket Number: No. 51793-2,51793-2
• Citation: 105 Wn.2d 257,714 P.2d 303
• Parties: In the Matter of the Personal Restraint Petition of Obert MYERS, Petitioner. En Banc
• Court: Washington Supreme Court

Page 257

105 Wn.2d 257

714 P.2d 303

In the Matter of the Personal Restraint Petition of Obert

MYERS, Petitioner.

No. 51793-2.

Supreme Court of Washington,

En Banc.

Feb. 13, 1986.

As Changed April 7, 1986.

Elizabeth Penoyar, South Bend, Patricia Arthur, Steilacoom, amicus curiae for petitioner.

Kenneth Eikenberry, Atty. Gen., Douglas Walsh, Asst., Seattle, for respondent.

PEARSON, Justice.

In October 1983, petitioner Obert Myers assisted one Joseph Gertz in the armed robbery of the Bank of Pacific's Naselle-Grays River Valley branch. Although Gertz was armed, Myers did not carry a weapon. Gertz forced the four tellers into the bathroom at gunpoint, but none of the tellers was physically injured.

One month later, authorities apprehended and questioned Myers. He was very cooperative, confessing to his own participation and implicating Gertz. According to Myers, Gertz tricked him into coming to Oregon, and then exerted some degree of coercion which prevented Myers from terminating his association with Gertz once the real reason for the association (robbery) became apparent.

Myers pleaded guilty to second degree robbery in Pacific County Superior Court and received the statutory maximum sentence of 10 years in a state correctional facility. The officer who completed the presentence investigation report considered placing Myers on probation, but instead recommended a term of 15 to 21 months, a sentence which he believed was consistent with the presumptive sentence range under the sentencing reform act of 1981 (SRA), codified at RCW 9.94A. ¹

The prosecuting attorney recommended that Myers serve the "acceptable minimum sentence" for second degree robbery. According to the prosecutor,

[i]t is important to note that O'bert Myers has no other criminal history or involvement ... and ... freely talked to the officers about his and Mr. Gertz's involvement ...

Myers appears genuinely recalcitrant [sic] ... He wrote a letter of apology to the tellers of the bank and made himself available as a witness in the prosecution of Mr. Gertz. It is this prosecutor's opinion that he does not pose a substantial danger to the public and should be paroled after serving the acceptable minimum sentence ...

Nevertheless, the trial court recommended that Myers serve a term of 5 years.

At Myers' admissions meeting with a panel of the Board of Prison Terms and Paroles (the Board), the Board imposed a sentence of 48 months, with a progress meeting scheduled for February 1986. The Board set Myers' sentence after considering the presumptive sentence range of 3 to 9 months under the SRA. The Board, however, failed to articulate reasons supporting the length of the sentence, which was over 5 times greater than the maximum presumptive sentence under the SRA.

Myers filed this personal restraint petition in the Court of Appeals, challenging the Board's imposition of a 4-year sentence. The Court of Appeals certified the petition to this court. The Board paroled Myers prior to oral argument, in part due to the trial court's reduction of Myers' prior minimum term recommendation to 3 to 9 months, in compliance with the SRA.

I

As pointed out by the Board, Myers' parole arguably renders his personal restraint petition moot. As a general rule, this court will dismiss an appeal if it presents moot issues. Sorenson v. Bellingham, 80 Wash.2d 547, 558, 496 P.2d 512 (1972). In Sorenson, however, the court recognized an exception to this rule "when it can be said that matters of continuing and substantial public interest are involved." Sorenson, at 558, 496 P.2d 512. The court must consider three criteria in determining whether the requisite degree of public interest exists: (1) the public or private nature of the question presented, (2) the need for a judicial determination for future guidance of public officers, and (3) the likelihood of future recurrence of the issue. Sorenson, at 558, 496 P.2d 512.

The petition before the court is the first of many petitions raising similar issues. Most of these petitions have been stayed pending resolution of this petition. Accordingly, the decision will have a broad impact within the corrections system, providing needed guidance to public officers who await this decision. In similar circumstances this court rendered a decision despite mootness. See In re Cross, 99 Wash.2d 373, 377, 662 P.2d 828 (1983); Dunner v. McLaughlin, 100 Wash.2d 832, 838, 676 P.2d 444 (1984); Bresolin v. Morris, 88 Wash.2d 167, 169, 558 P.2d 1350 (1977). We hold that Myers' petition is reviewable despite its mootness because it presents questions of continuing and substantial public interest.

II

Myers argues that the Board abused its discretion by imposing a sentence not reasonably consistent with the presumptive sentence range for second degree robbery under the SRA. The SRA became effective on July 1, 1984. The Court of Appeals has construed the SRA as only applying prospectively. In re Blair, 38 Wash.App. 670, 688 P.2d 532 (1984); In re Townsend, 38 Wash.App. 727, 688 P.2d 547 (1984); see also D. Boerner, Sentencing in Washington § 6.22 (1985).

Nevertheless, RCW 9.95.009(2) provides:

Prior to its expiration and after July 1, 1984, the board shall continue its functions with respect to persons incarcerated for crimes committed prior to July 1, 1984. The board shall consider the standard ranges and standards adopted pursuant to RCW 9.94A.040, and shall attempt to make decisions reasonably consistent with those ranges and standards.

(Italics ours.) Thus, defendants who received minimum terms after July 1, 1984 for crimes committed prior to that date are subject to the SRA to the extent provided above, even though the SRA sentencing provisions are binding only in cases where the defendant committed the crime after June 30, 1984. RCW 9.94A.905.

A review of the limited legislative history of the SRA, Second Substitute House Bill 440, 47th Legislature (1981), reveals some dispute as to whether the SRA limited or expanded the trial judge's sentencing discretion. Clearly, however, RCW 9.95.009(2) did limit the Board's sentencing discretion, as "[t]he use of the word 'shall' creates an imperative obligation unless a different legislative intent can be discerned." State v. Q.D., 102 Wash.2d 19, 29, 685 P.2d 557 (1984).

Before enactment of the SRA, the Legislature adhered to the policy that actual time of imprisonment was best determined by the Board. State v. Bishop, 94 Wash.2d 116, 118, 614 P.2d 655 (1980). The SRA represents a significant departure from that policy. The Board gradually is being phased out and will expire on July 1, 1988. Furthermore, even while the Board retains full membership, sentencing decisions now are within the sole province of trial judges, RCW 9.94A.120, except in the limited number of cases like the one before the court. In this group of cases, the Board must consider and attempt to impose sentences reasonably consistent with the ranges and standards under the SRA. RCW 9.95.009(2).

Despite the clear limitation imposed on the Board's discretion by RCW 9.95.009(2), the Board promulgated a Parole Board rule which provides:

Effective July 1, 1984, the Board shall fix minimum terms based upon its full discretion. The Board shall consider the standard ranges and standards adopted pursuant to RCW 9.94A.040 as currently constituted or amended and will attempt to establish minimum terms reasonably consistent with the standard ranges and the standards adopted therein while adhering to its purpose to reintegrate the offender back into society and preventing further anti-social acts under Chapter 9.95 RCW.

(Italics ours.) Parole Board Rule 2.081. If we give the Legislature's use of the word "shall" in RCW 9.95.009(2) its proper effect, see State v. Q.D., supra, the Board's rule clearly conflicts with the Legislature's intent.

Even if this court could derive a different interpretation from the seemingly mandatory language of RCW 9.95.009(2), this court "should adopt that one which best advances the overall legislative purpose." State v. Bishop, supra 94 Wash.2d at 118, 614 P.2d 655 (citing Anderson v. Morris, 87 Wash.2d 706, 716, 558 P.2d 155 (1976)). In the SRA's preambulatory language, it states, inter alia, that the SRA is designed to (1) ensure that punishment is proportionate to the offense and the offender's criminal history, (2) promote respect for the law by providing just punishment, and (3) be commensurate with the punishment imposed on others committing similar offenses. RCW 9.94A.010.

Reading this preambulatory language in context with the language of RCW 9.95.009(2) reveals the Legislature's clear message: The Board must consider and impose sentences "reasonably consistent" with the ranges and standards under the SRA. Although this court must decide what is "reasonably consistent", the Board clearly does not have the "full discretion" in sentencing which it claims under Parole Board Rule 2.081.

An administrative agency, like the Board, only has those powers granted it by the Legislature. In re Little, 95 Wash.2d 545, 549, 627 P.2d 543 (1981). Under the facts of this case, the SRA empowers the Board to impose sentences "reasonably consistent" with the SRA. The Board may not amend or alter the statutes under which it functions by its own interpretation of those statutes. In re George, 90 Wash.2d 90, 97, 579 P.2d 354 (1978). Parole Board Rule 2.081 represents the Board's attempt to amend the mandatory nature of RCW 9.95.009(2). This it cannot do. Baker v. Morris, 84 Wash.2d 804, 809, 529 P.2d 1091 (1974).

This court presumes the validity of administrative rules adopted pursuant to a legislative grant of authority, and will uphold such rules on review if they are reasonably consistent with the statute being implemented. Fahn v. Cowlitz Cy., 93 Wash.2d 368, 374, 610 P.2d 857, 621 P.2d 1293 (1980). Parole Board Rule 2.081 conflicts with the Legislature's express intent under RCW 9.95.009(2), a...