State v. Dainard, 43590

• Decision Date: 10 July 1975
• Docket Number: No. 43590,43590
• Citation: 85 Wn.2d 624,537 P.2d 760
• Parties: The STATE of Washington, Respondent, v. James A. DAINARD, Appellant.
• Court: Washington Supreme Court

Page 624

85 Wn.2d 624

537 P.2d 760

The STATE of Washington, Respondent, v. James A. DAINARD, Appellant.

No. 43590.

Supreme Court of Washington, En Banc.

July 10, 1975.

Collins & Hansen, James R. Brown, Ephrata, for appellant.

Paul A. Klasen, Jr., Pros. Atty., Ken Jorgensen, Deputy Pros. Atty., Ephrata, for respondent.

ROSELLINI, Associate Justice.

The appellant, 19 years of age, pleaded guilty to charges of burglary, larceny and taking a motor vehicle without the permission of the owner. At the sentencing hearing, the court had before it an account of the appellant's juvenile court record, which was furnished by the probation and parole office. Included in that office's report was a statement that the appellant had recently been arrested on suspicion of burglary but that no charges had been filed.

The superior court refused to suspend sentence and grant probation, stating that the circumstances of the crimes charged were such that the court felt that the appellant should be committed to the Department of Social and Health Services, Division of Institutions.

Being indigent, the appellant obtained court-appointed counsel and appealed to the Court of Appeals, Division Three, which transferred the appeal to this court.

The contention of the appellant is that it was improper for the court to have before it a record of his contacts with the juvenile correctional system and a record of an arrest upon which no charges were filed.

RCW 9.92.060 gives the superior court discretionary power to suspend sentences in all but certain types of cases. No criteria are provided for the exercise of this discretionary power. The Board of Prison Terms and Paroles is given a similar discretion in fixing the minimum sentence (RCW 9.95.040) and in allowing parole (RCW 9.95.110). The superior court and the prosecutor are directed to supply the Board with pertinent background information concerning convicted persons. RCW 9.95.030.--.032.

RCW 9.95.200 provides:

After conviction by plea or verdict of guilty of any crime, the court upon application or its own motion, may summarily grant or deny probation, or at a subsequent time fixed may hear and determine, in the presence of the defendant, the matter of probation of the defendant, and the conditions of such probation, if granted. The court may, in its discretion, prior to the hearing on the granting of probation, refer the matter to the director of institutions or such officers as the director may designate for investigation and report to the court at a specified time, upon the circumstances surrounding the crime and concerning the defendant, his prior record, and his family surroundings and environment.

CrR 7.2 provides for a presentence investigation, to be made upon the order of the court by the Department of Social and Health Services, Division of Institutions. The report shall contain

any prior criminal record of the defendant and such information about his characteristics, his financial condition and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and such other information as may be required by the court.

CrR 7.2(b).

We have said that the suspending of a sentence is a matter which rests in the sound discretion of the trial judge, who can make whatever investigation he deems necessary or desirable. State v. Williams, 51 Wash.2d 182, 316 P.2d 913 (1957); State v. Cohen, 11 Wash.2d 203, 118 P.2d 959 (1941). The court, of course, has no discretion in the fixing of the maximum sentence, that being provided by law. The Williams case is cited in 24 C.J.S. Criminal Law § 1571(5) at 467 (1961) as illustrative of the general rule.

The court, in passing sentence, may take into consideration other offenses committed by the same person. Seattle v. Gardner, 54 Wash.2d 112, 338 P.2d 125 (1959); 134 A.L.R. 1267 Et seq. (1941).

In reviewing an order denying the suspending of a sentence and the granting of probation, the question before the court is whether the trial judge abused his discretion. State v. Forbes, 74 Wash.2d 420, 445 P.2d 204 (1968). The determination of the question whether a sentence shall be suspended rests almost exclusively within the discretion of the trial judge. State v. Riddell, 75 Wash.2d 85, 449 P.2d 97 (1968).

Did the trial judge in this case abuse his discretion in having before him for consideration the juvenile record and information regarding an arrest of the appellant? The position of the appellant, as we understand it, is that the court can consider past crimes of the defendant, but only where there has been a conviction. RCW 13.04.240 provides that an order of court adjudging a child delinquent shall in no case be deemed a conviction of a crime.

We do not find the statutes and CrR 7.2 as narrow in their import as the appellant contends. They provide for the gathering and consideration of all information which may be helpful in deciding the question whether the defendant is a good risk for probation. Certainly the juvenile record of a young defendant has a significant bearing on this question. We do not understand the appellant to contend that the information before the court was not accurate. If there were false or misleading statements in it, the appellant's counsel was given an opportunity to call them to the court's attention. He has that right under CrR 7.2, and does not deny that he had an opportunity to exercise it.

The majority of courts hold that such records are admissible at sentencing hearings, in the absence of express statutory prohibition. See Annot., Court's right, in imposing sentence, to hear evidence of, or to consider, other offenses committed by defendant, 96 A.L.R.2d at § 7(c) (1964); 47 Am.Jur.2d Juvenile Courts § 56 (1969). The leading case is Hendrickson v. Myers, 393 Pa. 224, 144 A.2d 367 (1958), holding that a record of a juvenile offense was properly brought to the attention of and considered by the court in sentencing a 22-year-old defendant, even though it was provided by statute, as it is in this jurisdiction, that no child should be deemed to have been convicted of a crime by reason of any juvenile court order. ¹ The Pennsylvania court in that case said that to deprive the...