State v. McDougal

Decision Date10 December 1992
Docket NumberNo. 58437-1,58437-1
Citation841 P.2d 1232,120 Wn.2d 334
PartiesSTATE of Washington, Petitioner, v. Samuel J. McDOUGAL, Respondent.
CourtWashington Supreme Court

Jeffrey C. Sullivan, Yakima County Prosecutor, John C. Monter, Deputy, Yakima, for petitioner.

Department of Assigned Counsel, Louis Daniel Fessler, Yakima, for respondent.

Donald Brockett, Spokane County Prosecutor, Kevin M. Korsmo, Deputy, Spokane, C. Danny Clem, Kitsap County Prosecutor, Pamela B. Loginsky, Deputy, Port Orchard, amicus curiae for petitioner on behalf of Washington Ass'n of Prosecuting Attys.

Kenneth O. Eikenberry, Atty. Gen., John M. Jones, Asst., Olympia, amicus curiae for petitioner.

Michael Spearman, Seattle, amicus curiae for respondent on behalf of Washington Ass'n of Criminal Defense Lawyers.

SMITH, Justice.

The State of Washington seeks discretionary review of a decision of the Court of Appeals, Division Three, vacating a Yakima County Superior Court order modifying Respondent Samuel J. McDougal's sentence for possession of a controlled substance (cocaine) and remanding the case to the trial court for resentencing for violation of conditions of the court's sentencing order. We granted review. We reverse the Court of Appeals and affirm the trial court.

Two principal questions are raised by this case: (1) whether RCW 9.94A.200(2)(b) authorizes a separate 60-day term for each violation of a condition of a sentence or authorizes only a maximum 60-day term for all violations proved in one hearing; and (2) whether the trial court abused its discretion by imposing consecutive sentences of 45 days for each of 10 violations of sentencing conditions, for a total of 450 days, thus exceeding the defendant's standard upper sentencing range of 90 days for the underlying offense calculated under the Sentencing Reform Act of 1981.

On November 17, 1987, Samuel J. McDougal (Respondent) was charged by information in the Yakima County Superior Court with a class "C" felony, 1 possession of a controlled substance cocaine. 2 On December 3, 1987, he pleaded "guilty" to the charge. 3 The maximum sentence for the offense under RCW 69.50.401(a)(1)(i) is 10 years. 4 The standard range for respondent's sentence under the Sentencing Reform Act of 1981 (SRA), RCW 9.94A, was 0 to 90 days, based on his offender score of zero (0). 5 Following his plea, Respondent was sentenced by the Honorable Walter A. Stauffacher on December 3, 1987, to confinement for 30 days and community supervision for 1 year. 6

The community supervision section of the judgment and sentence, with blanks filled in (underlined portions) and selected provisions checked, provided: 7

The defendant shall serve 12 months of community supervision. Community supervision shall commence upon release.... Defendant shall report within 24 hours of this order of release from total or partial confinement to the Department of Corrections, Yakima, Washington, and shall comply with all rules regulations and requirements [of] the Department, and the conditions below:


[XX] Shall not use or possess any controlled substance, including marijuana, without a valid prescription.


[X] Shall have no contact with Suzzane Hodgins without written permission of the supervising officer.

[XX] ... Defendant shall submit to urinalysis testing as ordered by the Department of Corrections. This is to assure compliance with conditions of supervision.

Violations of the conditions or requirements of this sentence are punishable for a period not to exceed sixty (60) days of confinement for each violation.

(Italics ours.)

At sentencing, Respondent was given a document entitled "Standard Conditions and Sentence Requirements", with selected provisions checked, which provided:


1. [X] Submit an accurate written monthly report to the community corrections officer and report in person or as otherwise directed.

2. [X] Obtain written permission from the community corrections officer before traveling outside the county in which you reside, unless you have been advised in writing by your community corrections officer that it is not necessary to do so.

3. [X] Secure written permission from the community corrections officer before leaving the state of Washington.

4. [X] Obtain permission from the community corrections officer before changing residence or change in employment.

5. [X] Abide by any additional conditions imposed in writing by the court, and follow the instructions of the community corrections officer in meeting any and all conditions imposed by the court.

6. [X] Submit to a search of your person, residence, vehicle and other belongings when ordered to do so by the community corrections officer.

On April 29, 1988, Respondent was charged with violating conditions of his sentence by failing to report to Treatment Alternatives to Street Crime (TASC), a local drug/alcohol evaluation and treatment facility, for urinalysis. 8 After a hearing, he was sentenced on November 11, 1988 by the Honorable Stephen M. Brown to an additional 8 days of confinement. 9 The court determined that 8 months of Respondent's community supervision had been tolled and his community supervision was extended for an additional 8 months. 10 This would have extended it to August 4, 1989.

On October 4, 1989, the Yakima County Prosecuting Attorney petitioned the Superior Court to modify the sentence previously imposed on respondent, alleging 10 violations of its conditions. 11 The alleged violations were:

1. Using marijuana on March 31, 1989.

2. Using marijuana on April 14, 1989.

3. Using marijuana on April 28, 1989.

4. Using Darvon on May 12, 1989.

5. Using Darvon on May 31, 1989.

6. Failing to report for UA's 12 on June 9, 1989.

7. Failing to report for UA's on June 23, 1989.

8. Failing to report for UA's on July 14, 1989.

9. Moving from his residence on 48th Avenue to an unknown residence on or about June 15, 1989.

10. Failing to report to assigned CCO on July 3, 1989, as ordered. 13

On January 19, 1990, a supplemental probation violation report was filed, alleging two additional violations:

Leaving the State of Washington and journeying to the State of Montana sometime prior to 12-20-89 without receiving permission from his supervising Community Corrections Officer to do so; [and] Being in possession of drug paraphernalia in Missoula, Montana on or about 12-20-89. 14

On February 22, 1990, after a hearing, the trial court determined that Respondent had committed violations 1 and 2, but that he did not commit violation 3. 15 Respondent admitted violations 4, 5, 6, 7, 8, 9, 10 and 11. At that time both counsel and the court apparently construed the supplemental probation violation report as an amendment to the petition to modify the original sentence, thus resulting in 12 alleged violations. No finding was made on violation 12.

The State of Washington (Petitioner) recommended 60 days for each violation. Respondent McDougal objected, asserting that the State unfairly accumulated violations over a period of months to achieve a sentence totaling 600 days in prison which was grossly disproportionate to the standard range of 0 to 90 days for the underlying felony. 16 The court ordered respondent to serve 45 days in the Department of Corrections for each violation, to be served consecutively, for a total of 450 days. 17 In its oral decision, the court observed:

He [Respondent McDougal] hasn't been available to be supervised and he's refused efforts that have been extended to him to have a rehabilitative treatment. In other words, he's refused to have a drug program, enter in and follow through with it. Therefore, the general purposes of the Sentencing Reform Act have to be examined if we are not going to secure any kind of rehabilitation because of his refusal. 18

On March 16, 1990, Respondent McDougal filed a notice of appeal. The appeal was filed in the Court of Appeals, Division Three, on August 16, 1990. On July 11, 1991, the opinion of the Court of Appeals (Shields, J.) was filed. It vacated the order of the Superior Court modifying Respondent's sentence and remanded the case for resentencing. 19

On November 6, 1991, this court granted the State's petition for review. The Washington Association of Prosecuting Attorneys filed a brief amicus curiae in support of the petitioner. The Washington Association of Criminal Defense Lawyers filed a brief amicus curiae in support of the Respondent.

Petitioner argues that RCW 9.94A.200(1) and (2), authorizing a maximum 60-day penalty for each violation of a condition of a sentence, are clear and unambiguous. 20 Petitioner further contends that the statute complies with due process requirements and that "there is nothing 'exceptional' about sentences of up to 60 days per violation." 21

Respondent McDougal argues that RCW 9.94A.200 should be interpreted as authorizing only 60 days' confinement for each violation proceeding because the statute is ambiguous and should be interpreted in favor of the defendant. 22 He contends that this interpretation advances the legislative purpose of the SRA and that a contrary interpretation would violate "other substantive policies and provisions of the SRA." 23

Respondent asserts that if RCW 9.94A.200 is interpreted to allow the imposition of consecutive 60-day penalties in one proceeding, then such penalties may not exceed the offender's underlying standard range. 24 He further claims that if the statute is interpreted to allow the "imposition of consecutive 60 day penalties in one proceeding, then such penalties may not ... exceed 12 months", and the term of confinement should not be "ordered served in a state prison." 25

Respondent also claims that if the statute is determined to be clear and unambiguous, then it violates the due process provisions of the United States Constitution. 26 Additionally, he asserts that if the statute is not "invalidated", then imposition...

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