State v. Birgen, 10461-6-I
| Decision Date | 20 September 1982 |
| Docket Number | No. 10461-6-I,10461-6-I |
| Citation | 33 Wn.App. 1,651 P.2d 240 |
| Parties | STATE of Washington, Respondent, v. Robert BIRGEN, Appellant. |
| Court | Washington Court of Appeals |
Washington Appellate David Wohl, Seattle, for appellant.
Norman K. Maleng, King County Pros. Atty., Howard Todd, Deputy Pros. Atty., Seattle, for respondent.
Robert Birgen was charged in separate counts with third degree rape and statutory rape in the third degree, arising out of a single act of sexual intercourse with a 15-year-old young lady. Following trial, the jury returned verdicts of guilty on each count. The trial court entered judgment on the verdicts and sentenced Birgen to prison terms of 5 years on each count, to be served concurrently.
Birgen appeals the judgment and sentence, arguing that multiple convictions for the same offense constitute double jeopardy. Although the claimed error was not raised below, claims of "manifest error affecting a constitutional right" may be raised for the first time on appeal. RAP 2.5(a)(3). We find that the legislature did not intend that a defendant be convicted of both nonconsensual rape and statutory rape for a single act of intercourse, and accordingly we vacate the judgment and sentence and remand for sentencing on a single conviction.
The double jeopardy clause of the fifth amendment to the federal constitution, made applicable to the states through the fourteenth amendment, serves three primary purposes: it prohibits a second prosecution for the same offense following acquittal, it prohibits a second prosecution for the same offense after a conviction, and it prohibits multiple punishments for the same offense arising out of a single prosecution. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). See also Const. art. 1 § 9.
The State argues that under Washington law Birgen has not been subjected to "multiple punishment" for purposes of the double jeopardy clause because he received concurrent sentences on his two convictions. We are constrained to agree. See, e.g., In re Rice, 24 Wash.2d 118, 163 P.2d 583 (1945); State v. Johnson, 92 Wash.2d 671, 600 P.2d 1249 (1979); State v. Johnson, 96 Wash.2d 926, 639 P.2d 1332 (1982); State v. Mason, 31 Wash.App. 680, 644 P.2d 710 (1982); State v. Turner, 31 Wash.App. 843, 644 P.2d 1224 (1982). We note, however, that the concurrent sentence rule fails to take into account the many punitive aspects of a criminal conviction besides the possible maximum sentence. For example: punitive effects arising from the social and legal stigma of the conviction itself, the effect of multiple convictions on the minimum sentence set by the parole board, State v. Johnson, 92 Wash.2d at 679, 600 P.2d 1249, and the potential use of the multiple convictions for impeachment of Birgen's credibility, should he choose to put it in issue in the future.
The United States Supreme Court likewise summarized the collateral effects of a criminal conviction in holding that a criminal case does not become moot even after the sentence is served, noting
the obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences. The mere "possibility" that this will be the case is enough to preserve a criminal case from ending "ignominiously in the limbo of mootness." Parker v. Ellis, 362 U.S. 574, 577, 80 S.Ct. 909, 911, 4 L.Ed.2d 963 (1960) (dissenting opinion).
Sibron v. New York, 392 U.S. 40, 55, 20 L.Ed.2d 917, 88 S.Ct. 1889, 1912 (1968) (footnote omitted). And in Benton v. Maryland, 395 U.S. 784, 791, 89 S.Ct. 2056, 2060, 23 L.Ed.2d 707 (1969), the court held that the concurrent sentence doctrine does not state a jurisdictional rule barring consideration of double jeopardy challenges to multiple convictions where concurrent sentences were imposed, though it "may have some continuing validity as a rule of judicial convenience." The Benton court cited Sibron to illustrate the punitive consequences of a criminal conviction even in the context of a double jeopardy challenge to concurrent convictions, but steered shy of relegating the concurrent sentence doctrine to the judicial junkheap because of "special circumstances in this case" not necessitating such a holding. Benton 395 U.S. at 792, 89 S.Ct. at 2061. The Benton court then proceeded to find a double jeopardy violation and remanded the case for further proceedings despite the fact that concurrent sentences had been imposed.
Regardless of the continued vitality of the concurrent sentence doctrine in Washington, however, it is of limited applicability outside the review of multiple punishments under the double jeopardy clause. In State v. Eppens, 30 Wash.App. 119, 633 P.2d 92 (1981), for example another division of this court declined to apply the rule, even though concurrent sentences had been imposed, in a case where the issue was not double jeopardy but the validity of multiple convictions where several of the charges had been added following the running of the statute of limitations. Likewise, we would not apply the doctrine to limit review of alleged prejudicial error relating to one of multiple convictions, even though the sentences were concurrent, where the error did not depend on a finding of multiple punishment, i.e., review of evidentiary rulings, instructions, etc. In State v. Johnson, 96 Wash.2d 926, 930-31, 639 P.2d 1332 (1982), the Supreme Court stated the rule as follows:
The rule in this state has long been that where there are several charges against a person for the same act or transaction and convictions are obtained on all counts, if his sentences are made to run concurrently and do not exceed the penalty for one of the offenses of which he was properly convicted, he is being punished "but once for his unlawful act." In re Rice, 24 Wash.2d 118, 124, 163 P.2d 583 (1945).
(Emphasis added.) The fact that a defendant has been punished just once for a single act should not preclude review of convictions for non-double jeopardy reasons merely because the sentence was concurrent. Birgen's convictions are therefore reviewable despite the concurrent sentences. For the following reasons, we conclude that his multiple convictions of rape and statutory rape for a single act of intercourse cannot stand.
The power to decide "what shall be offenses against the law" rests with the legislative branch of the government. Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153 (1915); State v. Mundy, 7 Wash.App. 798, 502 P.2d 1226 (1972). Absent constitutional problems, the courts are required to apply penal statutes as written. Penal statutes are strictly construed against the State, and a court cannot create an offense through judicial construction or under the guise of "supplying legislative omissions or correcting legislative oversight." Jenkins v. Bellingham, 95 Wash.2d 574, 580-81, 627 P.2d 1316 (1981).
Correlative to the preceding rules and limitations on the power of the courts is the principle that where the statutes do not specifically so provide, and the legislative intent is not clear, "[d]oubt should be resolved against turning a single transaction into a multiple offense." State v. Arndt, 87 Wash.2d 374, 385, 553 P.2d 1328 (1976). Sometimes called the "rule of lenity," this rule acts to ensure that the criminal statutes will not be applied in such a way as to bring about a harsher result than that mandated by the legislature. See State v. Johnson, 92 Wash.2d 671, 600 P.2d 1249 (1979).
Just as legislative intent is the cornerstone of the analysis of multiple punishments in the double jeopardy context, Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), legislative intent must also be determinative of whether an accused may be convicted of more than one crime arising out of a single act. The question presented here is whether the legislature intended to permit convictions for both third degree rape and statutory rape in the third degree arising from a single act of intercourse.
We note first that the legislature has provided that upon conviction "of two or more offenses which arise from a single act or omission," sentences shall run concurrently unless otherwise provided by the trial court. RCW 9.92.080(2). The statute does not, however, indicate an intent to authorize multiple convictions in any particular situation, but provides that where multiple convictions are authorized and do occur, concurrent sentences shall be the rule, rather than the exception.
To discern the legislature's intent with regard to multiple convictions for a single act of sexual intercourse we must start with the rape statutes. RCW 9A.44.060 provides Rape in the third degree. (1) A person is guilty of rape in the third degree when, under circumstances not constituting rape in the first or second degrees, such person engages in sexual intercourse with another person, not married to the perpetrator:
(a) Where the victim did not consent as defined in RCW 9A.44.010(6), 1 to sexual intercourse with the perpetrator and such lack of consent was clearly expressed by the victim's words or conduct, or
(b) Where there is threat of substantial unlawful harm to property rights of the victim.
(2) Rape in the third degree is a class C felony.
RCW 9A.44.090 provides:
Statutory rape in the third degree. (1) A person over eighteen years of age is guilty of statutory rape in the third degree when such person engages in sexual intercourse with another person, not married to the perpetrator, who is fourteen years of age or older but less than sixteen years old.
(2) Statutory rape in the third degree is a class C felony.
The State is correct that under the "same evidence" test of State v. Roybal, ...
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