State v. Hall

• Decision Date: 12 July 1983
• Docket Number: No. 12146-4-I,12146-4-I
• Citation: 666 P.2d 930,35 Wn.App. 302
• Parties: STATE of Washington, Appellant, v. Scott Eric HALL, Defendant, Eric Martin Johnson, and each of them, Respondent.
• Court: Washington Court of Appeals

Page 302

35 Wn.App. 302

666 P.2d 930

STATE of Washington, Appellant, v. Scott Eric HALL, Defendant Eric Martin Johnson, and each of them, Respondent.

No. 12146-4-I.

Court of Appeals of Washington,

Division 1.

July 12, 1983.

Norman K. Maleng, King County Pros. Atty., J. Robin Hunt, Deborah J. Phillips, Deputy Pros. Attys., Seattle, for appellant.

Nelvin Bettis, Seattle, for respondent.

SCHOLFIELD, Judge.

The State of Washington seeks review of the sentence imposed by the trial judge upon the defendant, Eric Martin Johnson, following Johnson's conviction for second degree robbery. The trial judge, at 9 a.m. on August 3, 1982, placed Johnson on probation for 3 hours, requiring that he spend those 3 hours in his attorney's office, and directed counsel to present an order of dismissal at noon that same day. The order of dismissal pursuant to RCW 9.95.240 was signed by the court and filed in the afternoon of August 3, 1982. We reverse and remand to the superior court for resentencing.

Johnson was tried July 23-28 with another defendant, Scott Hall. Hall's case was tried to a jury. Johnson waived a jury trial and submitted his case for decision by the trial judge.

From the evidence before the court, the trier of fact could find beyond a reasonable doubt that Eric Johnson, Scott Hall, Craig Crnich, and Richard Strickland and two other people who did not participate in the actual robbery started planning the robbery about a week before it occurred. A .38-caliber revolver was borrowed and was used in the robbery. Johnson, Hall, Crnich and Strickland all participated in the robbery.

In the early morning hours of December 22, 1981, a service station employee was robbed at gunpoint of $2,500 he was preparing to deposit in the night deposit facility of a bank. The robber wore a ski mask over his face. He pointed the gun at the victim, took the money and instructed the victim to lie down on the ground or he would "blow [his] head off." The gun used in the robbery was loaded and operable. During the robbery, Johnson and Hall were in Johnson's car parked in a position where they could observe and give warning of the approach of law enforcement officers. They served the function of "lookouts." If officers appeared, the plan was for Johnson to distract them by driving his car in an erratic manner. The keyhole for the night deposit box had been jammed with a pencil lead for the purpose of delaying the service station employee in completing the deposit. After the robbery, the four participants drove to Hall's house, where the proceeds were distributed by setting aside some of it for a drug purchase and dividing the rest. Johnson received $300 as his share.

After the jury reached an apparent deadlock on a vote of 11-1 for conviction, Hall pled guilty to second degree robbery with allegations of use of a deadly weapon and a firearm deleted. After his conviction by the trial judge on July 28, Johnson was confined in the King County Jail pending sentencing.

The State makes several fundamental arguments. Its first contention is that the trial court acted without authority in entering an order deferring imposition of sentence without requiring the defendant to report to the secretary of corrections for probation supervision as required by RCW 9.95.210. ¹ Its second contention is that the trial court acted without authority in dismissing the information against the defendant when the dismissal was not preceded by a valid probationary period as required by RCW 9.95.240. ² We agree with both contentions.

A trial court lacks inherent authority to suspend a sentence. State v. Bird, 95 Wash.2d 83, 622 P.2d 1262 (1980); State v. Gibson, 16 Wash.App. 119, 127-28, 553 P.2d 131 (1976). The power to suspend a sentence or defer imposition or execution thereof must be granted by the Legislature. State v. Bird, supra; State ex rel. Woodhouse v. Dore, 69 Wash.2d 64, 69, 416 P.2d 670 (1966). The terms of the statutes granting courts power to suspend sentences and defer imposition of sentences are mandatory and when the statutory provisions are not followed, the action of the court is void. State ex rel. Schock v. Barnett, 42 Wash.2d 929, 259 P.2d 404 (1953). More specifically, it has been held that failure to place a defendant whose sentence was suspended " 'under the charge of a parole or peace officer' " as provided by statute rendered the portion of the judgment suspending sentence void. State ex rel. Pence v. Koch, 173 Wash. 420, 421, 23 P.2d 884 (1933).

RCW 9.95.210 provides, inter alia, that "[t]he court shall order the probationer to report to the secretary of corrections" or his designate. (Italics ours.) As a general rule, the word "shall" possesses a mandatory or imperative character. Ballasiotes v. Gardner, 97 Wash.2d 191, 642 P.2d 397 (1982); Spokane Cy. ex rel. Sullivan v. Glover, 2 Wash.2d 162, 97 P.2d 628 (1940). Consideration of all the terms and provisions of the statutes applicable to suspending and deferring sentences, the nature of the acts in relation to the subject of the legislation, the general object to be accomplished, and the consequences of various constructions as they relate to legislative intent as directed in State v. Huntzinger, 92 Wash.2d 128, 594 P.2d 917 (1979), demonstrates the Legislature intended to make reporting to the secretary of corrections a mandatory step in the probationary process.

In contrast to the Legislature's use of "shall" in establishing a reporting requirement, the Legislature used "may" with reference to granting or denying probation, RCW 9.95.200, suspending sentence, imprisoning the defendant in the county jail, ordering payment of fines or restitution, RCW 9.95.210, and revoking probation. RCW 9.95.220. Presumably, the Legislature intended to distinguish the reporting requirement, making it mandatory, from the other discretionary ("may") requirements. Scannell v. Seattle, 97 Wash.2d 701, 648 P.2d 435 (1982).

A mandatory interpretation also is most consistent with the purposes of probation. An important goal of sentencing is to provide an opportunity for rehabilitation of the defendant so that he or she can resume a productive role in the community. Probation is a means by which judges may provide defendants with this opportunity. Roberts v. United States, 320 U.S. 264, 272, 64 S.Ct. 113, 117, 88 L.Ed. 41 (1943); 3 American Bar Ass'n, Standards for Criminal Justice, ch. 18 (2d ed. 1980); S. Ringold, A Judge's Personal Perspective on Criminal Sentencing, 51 Wash.L.Rev. 631, 638-39 (1976); 1 C. Torcia, Wharton on Criminal Law § 4 (14th ed. 1978). Once guilt has been established as a fact, either by acknowledgement through plea of guilty or by trial, whether probation shall be granted rests in the sound discretion of the trial court. It comes as an act of judicial grace or lenience motivated by many judicial hopes, among which are that the offender will mend his ways, make restitution and avoid not only repetition of his offense but the appearance thereof.

State ex rel. Woodhouse v. Dore, supra 69 Wash.2d at 69-70, 416 P.2d 670.

RCW 9.95.210 reflects clearly the legislative intent that the granting of probation would include the imposition of such conditions as in the court's discretion will contribute to teaching personal discipline and the recognition of personal responsibility that are universally recognized as being necessary to the rehabilitation of the offender. As part of that scheme, the statute directs that the probationer report to the secretary of corrections and follow implicitly his instructions.

As succinctly stated in State v. Hultman, 92 Wash.2d 736, 745, 600 P.2d 1291 (1979):

Supervision during the probationary period is contemplated under RCW 9.95.210. No one monitored Hultman's performance of the prescribed conditions of probation, a circumstance not conducive to successful completion of probation.

Because the trial judge failed to order Johnson to report to the secretary of corrections or his designate, the order granting Johnson probation is void. State ex rel. Schock v. Barnett, supra.

We also conclude that the purpose and evident legislative intent of RCW 9.95.240 was not followed by the trial judge when he signed an order on the same day that sentence was imposed setting aside the finding of guilty, dismissing the charge, and releasing Johnson from all penalties and disabilities resulting from the crime of which he had been convicted.

A review of the provisions of RCW 9.95.230 and .240 makes it clear that those statutes contemplate, first, the imposition of conditions of probation which have some logical connection with the ultimate objective of rehabilitation, and, subsequently, satisfactory performance of those conditions by the probationer. Where the period of probation is so short that the objective of the statutory scheme is impossible of attainment, the resulting dismissal violates the statute because there has been no probation which would qualify the probationer for the benefits of the statute. It follows that the dismissal entered August 3, 1982 must be reversed and the cause reinstated. Accordingly, we reinstate the charge, and remand to the trial court for resentencing. We are mindful of the double jeopardy implications in this course, but do not find the clause controlling.

A criminal defendant is charged with knowledge of the statutes applicable to his sentencing, and can have no legitimate expectation, protected by the double jeopardy clause, that his sentence will not be increased on a statutorily provided appeal, United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), or that he can benefit from the terms of a sentence which is contrary to statute. State v. Loux, 69 Wash.2d 855, 420 P.2d 693 (1966). The only limitation imposed by the double jeopardy prohibition in such circumstances is that punishment already imposed must be fully credited when an appropriate sentence is entered for the offense....