Sinka, Matter of
| Decision Date | 06 September 1979 |
| Docket Number | 46075,Nos. 46016,s. 46016 |
| Citation | 599 P.2d 1275,92 Wn.2d 555 |
| Parties | In the Matter of the Personal Restraint Petition of Dennis SINKA. In the Matter of the Personal Restraint Petition of Jody John ROWE. |
| Court | Washington Supreme Court |
Wayne Lieb, Sally Harrison, Institutional Legal Services, Walla Walla, Robert Adelman, Institutional Legal Services, Olympia, for petitioner.
Nate D. Mannakee, Asst. Atty. Gen., Olympia, for respondent.
Two prison inmates, Sinka and Rowe, by personal restraint petitions present the issue whether they are entitled to procedural due process in the setting of their minimum prison terms by the Board of Prison Terms and Paroles (Parole Board). We hold that petitioners are entitled to minimal due process and that the procedures used by the Parole Board to set minimum terms generally provide the process due.
Petitioner Sinka pleaded guilty to a charge of carnal knowledge of his stepdaughter and was sentenced by the trial court to a 20-year maximum term. The sentencing judge recommended an 18-month minimum term, and the prosecutor recommended a 3-year minimum term. Under Parole Board guidelines, Sinka was in the category of offenders normally receiving a minimum term of 18 to 24 months.
To have his minimum term set, Sinka met alone with two members of the Parole Board in September 1977. Sinka did not have access to his Parole Board file.
After the meeting, the Board decided to exceed the recommendations and the guideline terms and set Sinka's minimum at 15 years. It gave these written reasons for its decision:
Mr. Sinka is here for the crime of Carnal Knowledge which involved the forcible rape of his fourteen year old stepdaughter. File material and admissions from Mr. Sinka indicate that not only at the time he was having relations with his stepdaughter, he was also having relations with his wife and also with one of his stepdaughter's girlfriends. Mr. Sinka admits that he is the father of at least four children by four different women, mostly juveniles. He indicates to the panel that he is from Alaska and that he thought that was all right, that as long as they wanted to play that they could play. It was the panel's feeling that there is sufficient evidence in the file that he did use force in these assaults and there's also information in the file that he possibly assaulted another minor and by his own admission, a couple of other young ladies. It is hoped that the panel that sees him in July of 1979 does not consider any substantial cut.
The facts recited by the Board in its decision come primarily from a parole officer's presentence report to the trial court. Pursuant to CrR 7.2(c), the report was disclosed to Sinka before the trial court imposed the maximum term. Sinka's attorney presented the trial court with a memorandum challenging the report's accuracy. Although the Parole Board file on Sinka included the presentence report, it is unclear whether the file also contained the memo of Sinka's lawyer.
Upon receiving news of his 15-year minimum term, Sinka complained to the Parole Board that it had relied on misinformation. He submitted affidavits controverting a number of the facts recited in the Board's written decision. He requested access to his file and redetermination of his minimum term.
The Parole Board did not respond and Sinka filed this personal restraint petition. He asks for a new minimum term hearing and an opportunity to review his parole file. His appearance before the Parole Board for a "progress hearing" was scheduled for July 1979.
Petitioner Rowe pleaded guilty to a second degree murder charge and was sentenced by the trial court to a maximum 20-year term. The sentencing judge recommended that Rowe be considered for intensive parole rather than a minimum term; the prosecutor recommended a 71/2-year minimum term. Under Board guidelines, Rowe apparently was in the category of offenders normally receiving a minimum term of 6 to 8 years.
Rowe met alone with two Board members in May 1977 for setting of his minimum term. He did not have access to his file.
After the meeting, the Board went outside the recommended and guideline ranges and sentenced him to a 10-year minimum. Its written reason for this decision states:
This was a tavern beef that finally went outside and then there another guy asked him for a cigarette and there were some more words. Finally, the other guy challenged him to a fight and Rowe pulled out a .45 and shot him and he died. Rowe claims that the other guy was attacking him. He drew the gun, shot and ran and says that he doesn't know why, other than he was using alcohol and drugs at the time. He's a high school graduate with a couple of years of college. He's been drinking and using drugs and under a doctor's care some two years ago for emotional problems. He's 22, and while this is his first felony conviction, the file reflects that there have been felonies both as an adult and a juvenile. It is clear that he was using the abusing alcohol, and poly-drugs at the time and did own and carry the .45. It seems he slowly but surely kept getting himself more involved in a non-conformist and rebellious position. He shows shame and remorse.
Upon learning of his 10-year minimum term, Rowe filed this personal restrain petition. He says that he was never convicted of, nor is guilty of any other crimes besides his second degree murder conviction. Therefore, he claims, the Board was misinformed in setting his minimum term on the basis that "the file reflects that there have been felonies both as an adult and a juvenile."
As relief, Rowe requests: (1) a new minimum term hearing; (2) advance notice of disputed factual issues; (3) assistance of counsel; (4) right to present witnesses and evidence; (5) right to cross-examination; and (6) a statement of reasons for factual conclusions reached at the new minimum term hearing.
Since filing his personal restraint petition, Rowe met in February 1979 with the Parole Board for a "progress hearing." The Board did not reduce his minimum term.
We now consider the procedures used by the Parole Board to set minimum terms. RCW 9.95 is the Washington prison terms, paroles and probation act and provides a structure for modified indeterminate sentencing. See generally Meyerson, The Board of Prison Terms and Paroles and Indeterminate Sentencing: A Critique, 51 Wash.L.Rev. 617 (1976); Johnson, The Board of Prison Terms and Paroles: Criteria in Decision Making, 51 Wash.L.Rev. 643 (1976); Comment, A Perspective on Adult Corrections in Washington, 51 Wash.L.Rev. 495 (1976).
When a person is convicted of a felony, the trial court must sentence the person to the Maximum statutory term. RCW 9.95.010. Then, within 6 months of the person's admission to prison, the Parole Board sets the Minimum term. RCW 9.95.040.
To assist the Parole Board in setting a minimum term, the sentencing judge and the prosecuting attorney provide the Board with recommendations for a minimum term and with a "statement of all the facts concerning the convicted person's crime and any other information . . . relative to him." RCW 9.95.030. In addition, the prosecutor provides the Parole Board with a statement about the convicted person's earlier career, character and capability of again becoming a good citizen; a copy of the statement is provided to the inmate. RCW 9.95.031; .032.
In making its minimum term decision, the Board considers the statements it receives from the judge and prosecutor, and any other information about the "convict as a personality." RCW 9.95.030; .170. See In re Wyback, 32 Wash.2d 780, 783, 203 P.2d 1083 (1949). It then sets the minimum term, which may not exceed the maximum statutory term. RCW 9.95.040. The Board may later reduce or increase a minimum term depending on the inmate's behavior and obeyance of prison rules. RCW 9.95.052; .080.
Upon completion of an inmate's minimum term (less time for good behavior), the Board may parole the inmate. RCW 9.95.110. A parole interview is held to determine whether the inmate should be released. Parole may be revoked if the parolee breaches a condition of release. RCW 9.95.120. See Monohan v. Burdman, 84 Wash.2d 922, 930, 530 P.2d 334 (1975).
The Board is authorized to promulgate rules to carry out the provisions of the act. RCW 9.95.150. The Board, however, is exempt from the Washington administrative procedures act and its rules are not published in the Washington Administrative Code. RCW 34.04.040; .050; .150. See In re George, 90 Wash.2d 90, 98 n.2, 579 P.2d 354 (1978).
Chapter 5 of the Board's Rules of Practice and Procedure (1971) regulates the setting of minimum terms. Board Rule 5.121 (1976) establishes guidelines for fixing of minimum terms based on the crime's seriousness and an inmate's "parole success probability." This probability is derived from a formula which considers type of crime, marital status, alcohol use, juvenile institutionalization and prior parole record. The rule requires the Board to provide the inmate with written reasons whenever it sets a minimum term outside the guideline ranges. This rule was in effect when petitioners Sinka and Rowe received their minimum terms.
Board Rule 5.121, however, was amended in 1978. The new rule derives minimum terms from a formula which weighs felony classes, aggravating circumstances and prior criminal record. Like the old rule, new Rule 5.121 requires the Board to give written reasons when it sets minimum terms outside the guideline ranges. The Board in January 1979 prepared a standardized form that lists 42 reasons for decisions outside the guidelines.
The actual setting of a minimum term occurs at a meeting between the inmate and a two-person panel of the Parole Board; that meeting averages 15-20 minutes in length. Board Rule 5.100; See generally American Friends Serv. Comm., AFSC Study of the Washington Board of Prison Terms and Paroles 7-8 (1977). The inmate...
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