State v. Bernhard

Decision Date30 July 1987
Docket NumberNo. 53280-0,53280-0
Citation108 Wn.2d 527,741 P.2d 1
PartiesSTATE of Washington, Appellant, v. Dean A. BERNHARD, Respondent.
CourtWashington Supreme Court

Seth R. Dawson, Snohomish County Pros., Seth Aaron Fine, Deputy County Pros. Everett, for appellant.

Washington Appellate Defender Lenell Nussbaum, Seattle, for respondent.

UTTER, Justice.

The State of Washington (State) challenges the trial court's power under the Sentencing Reform Act of 1981 (SRA), RCW 9.94A, to sentence Dean Allen Bernhard, a defendant with a prior criminal record, to an in-patient drug treatment facility. According to the State, under a standard SRA sentence, the trial court has no authority to specify the confinement facility. In addition, the State argues that the authority to impose an exceptional sentence refers only to the duration, not to the conditions, of the sentence imposed. We reject both of the State's arguments. Under the SRA and the City and County Jails Act (CCJA), RCW 70.48, the trial court has limited authority to select an available county facility for defendants sentenced to confinement of 1 year or less. As to Bernhard's sentence, we agree with the Washington Sentencing Guidelines Commission and hold that the power to impose an exceptional community supervision sentence includes authority to name exceptional conditions. We hold further that the exceptional sentence imposed in this case was justifiable.


On October 29, 1985, the defendant, Dean Allen Bernhard pleaded guilty to second degree burglary. Bernhard had two prior convictions, one of which resulted in a substantial period of time in county jail. The trial court imposed sentence pursuant to the SRA, under which Bernhard had an offender score of 3 and a standard sentence duration of 4-12 months. At sentencing the State recommended a sentence of 4 months partial confinement in a work release facility (Snohomish County Jail). Because the trial court found Bernhard's criminal behavior was the direct result of his addictions to drugs and alcohol, the court sentenced him to serve 12 months confinement in the in-patient Teen Challenge Drug Treatment Program (Teen Challenge).

Based on an affidavit filed by defendant's counsel, the trial court found Teen Challenge to be an agency utilized by Snohomish County for probation and parole purposes. The program is certified and licensed by the State Bureau of Alcohol and Substance Abuse. Treatment in the program requires a "black out" of communication, including total confinement, for the first 30 days. After the initial 30-day period, residents may be permitted up to two leaves per month for 10 hours each. To sentence Bernhard to Teen Challenge, the trial court felt it necessary to impose an exceptional sentence under RCW 9.94A.120(2). As exceptional circumstances the trial court noted that the defendant's crimes directly resulted from his addiction, that he had served time in jail, which had no effect on his behavior, and that unless Bernhard received adequate treatment for his addictions, incarceration would have no effect on his behavior.

Initially, the State appealed from this sentence to Division One of the Court of Appeals, which remanded for a supplemental determination whether Teen Challenge is a facility at which confinement may be served within the meaning of the SRA. After the trial court made this supplemental finding, the State again appealed to the Court of Appeals, which certified the appeal to this court. We granted direct review pursuant to RCW 2.06.030.


As a preliminary matter, Bernhard makes two arguments why this court need not reach any of the issues raised by the State's appeal. Neither argument has merit. First, Bernhard argues that because the 12-month sentence comes within the standard range, the State may not appeal. See RCW 9.94A.210(1). However, this limitation on the right of appeal only precludes appellate review of challenges to the amount of time imposed. State v. Ammons, 105 Wash.2d 175, 182, 713 P.2d 719, 718 P.2d 796 (1986). Since the State challenges the trial court's authority to designate a facility, rather than the amount of time, RCW 9.94A.210(1) does not apply. Next, Bernhard argues that because the actual sentence imposed is more restrictive on the defendant's freedom than the sentence recommended by the State, the State has not been prejudiced, making any error harmless and not reversible. See In re Ferguson, 41 Wash.App. 1, 15, 701 P.2d 513 (1985). However, if the trial court exceeded its authority in pronouncing sentence, reversible error has occurred. State v. Eilts, 94 Wash.2d 489, 617 P.2d 993 (1980).


Under the SRA, a trial judge must impose a determinate sentence, defined as a specific time period of total confinement, partial confinement, community supervision, or community service work, and/or a fine of a specified amount. RCW 9.94A.030(10). Judges must impose sentences within a "presumptive sentencing range" and these sentences are "expressed in terms of total confinement." RCW 9.94A.370. The original language adopted by the Legislature was ambiguous concerning a trial court's ability to impose nonconfinement sentences. Washington Sentencing Guidelines Comm'n (Commission), minutes of meeting on Dec. 9, 1983, at 3. To clear up any ambiguity, the Commission proposed several amendments, which the Legislature adopted. One amendment clarified alternatives to total confinement, RCW 9.94A.380. Laws of 1984, ch. 209, § 21. In a separate amendment, the Legislature created a new section entitled Community Supervision, RCW 9.94A.383. Laws of 1984, ch. 209, § 22. The purpose of the new section was to make it clear that trial courts could impose community supervision as the sole sanction for offenders sentenced to 1 year or less. Commission minutes, at 3-4.

Bernhard correctly points out that under section .383 the trial court has the authority to require him to serve 12 months of community supervision, without imposing any time of confinement whatsoever. In fact, the Legislature viewed the amendments adopted in 1984 as restoring greater discretion to trial judges, characterizing the amendments as "express authority to suspend or defer the sentences of felons sentenced to a year or less in jail." Final Bill Report, SHB 1247, 48th Legislature (1984), Synopsis as Enacted, at 3. Bernhard argues further that spending 12 months at an in-patient drug and alcohol program can be a sentence condition within the meaning of "community supervision."

We disagree. While the 1984 amendments provided greater discretion for sentences of 1 year or less, the Legislature did not alter the definition of "community supervision", which means "crime-related prohibitions and other sentence conditions imposed pursuant to this chapter by a court." RCW 9.94A.030(4). Crime-related prohibitions "shall not be construed to mean orders directing an offender affirmatively to participate in rehabilitative programs or to otherwise perform affirmative conduct." RCW 9.94A.030(7). "Other conditions" may include in-patient treatment programs, but only for first-time offenders pursuant to RCW 9.94A.120(5). In addition, the Legislature did not include in-patient treatment as an alternative to confinement under RCW 9.94A.380. Consequently, because Bernhard is a repeat offender, the trial court could not include time at an in-patient treatment facility as a condition of a standard community supervision sentence.

Absent authority under the standard community supervision sentence, we can uphold the trial court's sentence only if (1) a trial court's standard sentencing authority allows it to select Teen Challenge as Bernhard's place of confinement, or (2) the exceptional sentence provision, RCW 9.94A.120(2), empowers trial courts to impose sentence conditions outside of those allowed under the standard sentence.


In challenging the trial court's authority to specify the place of confinement, the State argues correctly that prior to the SRA, only correctional authorities had the power to determine in which facility a defendant would be confined. Under the old sentencing scheme, once Bernhard pleaded guilty to second degree burglary, he became a class B felon (RCW 9A.52.030(2)), subject to "confinement in a state correctional institution" and/or a fine. RCW 9A.20.021(1)(b). As the State has pointed out, when the trial court sentenced a defendant to a state institution, the Department of Corrections (Department), not the trial judge, selected the appropriate facility. RCW 72.13.150. See Clark Cy. Sheriff v. Department of Social & Health Servs., 95 Wash.2d 445, 448-49, 626 P.2d 6 (1981). If a trial court wished to specify an in-patient treatment facility, it could do so, but only by suspending or deferring sentence and making participation in the in-patient program a condition of probation. See RCW 9.92.050; 9.95.210; see also State v. Walker, 27 Wash.App. 544, 547-48, 619 P.2d 699 (1980).

Bernhard argues that prior to the SRA, the CCJA contemplated a trial court having the power to sentence defendants to county jails or facilities other than jails. While the CCJA did contemplate such a power, it did not apply when defendants were convicted of felonies; sentencing classifications allowed a court to sentence a defendant to county jails only for gross misdemeanors and misdemeanors. RCW 9A.20.020(2) and (3). Thus, for convicted felons sentenced prior to the SRA, the Department had the power to select the specific confinement facility.

The State argues further that the SRA did not alter the status quo, preserving correctional authorities' power to select the facility. We disagree. The SRA significantly altered prior sentencing law for felons by distinguishing on a length of sentence basis. Now only felons confined for more than 1 year "shall [serve their sentence] in a facility or institution operated, or utilized under contract, by the state." RCW 9.94A.190. For...

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