Powell, Matter of

• Decision Date: 02 August 1991
• Docket Number: 57196-1 and 57253-4,Nos. 57041-8,s. 57041-8
• Court: Washington Supreme Court
• Parties: In the Matter of the Personal Restraint of Robert Patrick POWELL, Petitioner. In the Matter of the Personal Restraint of Douglas THOMPSON, et al, Petitioners. In the Matter of the Personal Restraint of Robert Neil HALSTIEN, Petitioner.

Page 175

117 Wn.2d 175

814 P.2d 635

In the Matter of the Personal Restraint of Robert Patrick

POWELL, Petitioner.

In the Matter of the Personal Restraint of Douglas THOMPSON,

et al, Petitioners.

In the Matter of the Personal Restraint of Robert Neil

HALSTIEN, Petitioner.

Nos. 57041-8, 57196-1 and 57253-4.

Supreme Court of Washington,

En Banc.

Aug. 2, 1991.

Robert Neil Halstien, pro se; Evergreen Legal Services, John B. Midgley, Patricia J. Arthur, Seattle, for petitioners

Kenneth O. Eikenberry, Atty. Gen., Thornton Wilson, Nicholas J. Betsacon, Asst. Attys. Gen., Olympia, for respondent.

BRACHTENBACH, Justice.

Petitioners challenge the constitutionality of Substitute House Bill 1457, 51st Legislature (1989) (SHB 1457). Laws of 1989, ch. 259; RCW 9.95.009, .013, .115, .116. This statute requires that a minimum sentence which roughly conforms to Sentencing Reform Act of 1981 (SRA) criteria be set for inmates who, like petitioners, are serving mandatory life sentences for crimes committed before July 1, 1984. The main thrust of petitioners' challenge is that SHB 1457 extends the time to be served before a life inmate is eligible for parole beyond that called for by prior law and therefore violates the ex post facto clauses of the federal and state constitutions. They therefore seek to have SHB 1457 declared void so that the law in effect when they committed their crimes can be applied to determine their parole release date. Petitioners also make an equal protection challenge and a number of due process challenges.

We hold that SHB 1457 is not an ex post facto law as applied to prisoners who were not certified as parolable by the superintendents of their prisons as of the effective date of SHB 1457, but that it is an ex post facto law as applied to persons who were certified as parolable prior to that date. We also hold that a prosecutor's "updated" recommendation, required by SHB 1457, which is inconsistent with a plea agreement the prosecutor entered into is a violation of due process.

We therefore deny entirely the petition of Powell, who did not enter into a plea agreement and who was not certified as parolable before the effective date of SHB 1457. We grant the petitions of Halstien and Forsman,

                but only to the extent necessary to remedy increases in the prosecutors' "updated" recommendations in their cases, since they did enter into plea agreements, but were not certified as parolable prior to the effective date of SHB 1457.   Finally, we fully grant the petition of Thompson, who was certified as parolable when SHB 1457 took effect.   We therefore hold that the law in effect at the time he committed his crime must be applied to determine his parole release date, regardless of whether that date is earlier or later than the SRA-consistent presumptive release he would have received under SHB 1457
                

FACTS

Each of the petitioners was convicted of first degree murder. The essential facts of the individual cases are as follows:

Douglas Thompson: Thompson asked his employee, LeAnn Christensen, to help him sell drugs. She agreed and the two went to Edmonds, Washington, in Thompson's car. While there, they dropped the drugs off at a local high school to be sold. The two then went to Seattle, where Ms. Christensen dropped Thompson off at a local tavern and continued on to the home of her boyfriend, Dick Wylie. Thompson eventually walked from the tavern to Mr. Wylie's house and demanded that Ms. Christensen leave with him. When she refused, he began to drag her out of the house. Mr. Wylie attempted to intervene on Ms. Christensen's behalf, at which point Mr. Thompson drew a pistol and threatened Mr. Wylie's life. Thompson eventually cooled down, put the gun away, and even went inside and had a drink with Ms. Christensen, Mr. Wylie and some of their friends. While inside, it was decided that Ms. Christensen would leave with Thompson.

Thompson and Ms. Christensen eventually returned to the high school in Edmonds where the unsold drugs were returned to them. Thompson then told Ms. Christensen he had something to do which would hurt her. She got out ofthe car and he returned to Seattle. He returned to Mr Following a jury trial, Thompson was found guilty of murder in the first degree with a special verdict of "armed with a deadly weapon, and a firearm." He was sentenced by the sentencing judge to a maximum term of life imprisonment. The sentencing judge recommended a minimum term of 15 years and the prosecuting attorney recommended that parole eligibility be determined pursuant to former RCW 9.95.115.

                Wylie's house and knocked on the door.   When Mr. Wylie answered, Mr. Thompson shot him in the chest with a shotgun which he kept in the trunk of his car, and then, once Mr. Wylie was on the ground, Thompson shot him twice more
                

Robert Powell: Powell lived in a rooming house in Seattle with 21-year-old Dennis White. Powell was upset at Mr. White because he suspected Mr. White had stolen an old mirror and an old teakettle from the residence's community kitchen. In the early morning hours of December 11, 1975, Powell therefore beat and pistol-whipped Mr. White with a .22 caliber automatic pistol while Mr. White pleaded for his life. After cooling down, Powell handed the gun over to a third person who removed a bullet from the gun's chamber and inserted it into the ammunition clip. Powell eventually demanded the gun back, went into Mr. White's room, aimed the gun at him and pulled the trigger. Because there was no longer a bullet in the chamber, however, the gun did not fire, but merely went "click". Powell again aimed the gun at Mr. White, who had by this time changed his position, and again pulled the trigger. This time the gun went off, with the bullet entering Mr. White's chest.

Mr. White, who was at this point still able to move, began to gather his belongings, indicating that he was planning to leave. Powell ordered Mr. White to stop packing and told Mr. White that he would take him to the hospital. Once in the parking lot, however, Powell executed Mr. White, shooting him two more times in the chest and two times in the brain.

Following a jury trial, Powell was convicted of murder in the first degree, with a special verdict of "armed with a deadly weapon, and a firearm." He was sentenced by the sentencing judge to a maximum term of life imprisonment. The sentencing judge also recommended a minimum sentence of 20 years, while the prosecuting attorney recommended that the defendant never be paroled.

Terry Forsman and Robert Halstien: In the early morning hours of November 21, 1975, Forsman and Halstien broke into the house of John and Florence Standing, an elderly couple, through the rear window of their house. In the nights leading up to this break-in they had on numerous occasions discussed committing robberies, had once knocked on a neighbor's door to see if anyone was home, and had once knocked on the Standings' door and left after being refused admittance. They broke in hoping to steal the large amount of money they had heard the Standings kept in the house.

Immediately after entering, Halstien forced his way into Mrs. Standing's bedroom, awakening Mrs. Standing. He then pulled her off the bed, violently pushed her around the room, cursed at her, and threatened her life if she did not give him her money. Forsman then entered the room, followed closely by Mr. Standing, who had been awakened as he slept in his separate bedroom. Mr. Standing ordered Halstien to leave his wife alone, upon which Halstien pointed the gun at Mr. Standing, told him he would kill him, and then shot him in the heart, killing him instantly. Mrs. Standing tried to free herself to assist her husband, but Forsman and Halstien beat her until she stopped. Both Forsman and Halstien then pointed guns at Mrs. Standing, threatening to kill her if she did not give them money. Once she had given them all the money she could find, they left.

Both Forsman and Halstien pleaded guilty to murder in the first degree (while armed with a deadly weapon and firearm). In return, they each received a maximum sentence At the time petitioners committed their crimes, a person convicted of first degree murder who did not receive a sentence of death or life imprisonment without possibility of parole automatically received a sentence of life imprisonment. RCW 9A.32.040 (1976). The Board of Prison Terms and Paroles (later redesignated the Indeterminate Sentence Review Board and hereinafter "the Board") did not obtain jurisdiction over a prisoner serving a life sentence for purposes of granting parole until the prisoner had served 20 years, minus good time served, and the prisoner had been certified parolable by the superintendent of the prison where the inmate was incarcerated. It is critical to note that the Board had no authority to consider parole release until both conditions had occurred, i.e., service of a minimum of 20 years (less good time credit, if any) and certification from the superintendent of the prison. Former RCW 9.95.115. As discussed hereafter, the certification of eligibility for parole was entirely discretionary with the superintendent.

of life imprisonment and a minimum sentence recommendation of 20 years from both the sentencing judge and the prosecuting attorney.

Once both conditions had occurred, the Board still did not set a minimum sentence, but rather decided on an ad hoc basis whether to grant parole. Thus, although the judges and prosecutors involved in petitioners' cases tendered minimum sentence recommendations to the Board, the Board did not at that time set minimum sentences for petitioners.

In 1989, the Legislature enacted SHB 1457. Under it, the Board was directed to immediately set minimum sentences for all persons serving life sentences for crimes committed before July 1, 1984, and to make this minimum sentence generally conform to SRA standards and the "updated" recommendations of the prosecutor and...