State v. Nixon, 1961--I

• Decision Date: 28 December 1973
• Docket Number: No. 1961--I,1961--I
• Citation: 517 P.2d 212,10 Wn.App. 355
• Parties: STATE of Washington, Respondent, v. Verner Lynn NIXON, Appellant.
• Court: Washington Court of Appeals

Page 355

10 Wn.App. 355

517 P.2d 212

STATE of Washington, Respondent, v. Verner Lynn NIXON, Appellant.

No. 1961--I.

Court of Appeals of Washington, Division 1.

Dec. 28, 1973.

Rehearing Denied March 19, 1974.

Snure & Gorham, James B. Gorham, Des Moines, for appellant.

Christopher T. Bayley, King County Pros. Atty., Michael P. Ruark, Deputy Pros. Atty., Seattle, for respondent.

CALLOW, Judge.

The defendant was charged with being an habitual criminal. Following a nonjury trial, findings of fact and conclusions of law were entered adjudicating the defendant to be an habitual criminal.

The defendant states that the Prosecuting Attorney in King County has charged individuals whose records indicated two or more prior felony convictions with a further felony and then has not charged these persons with being an habitual criminal pursuant to RCW 9.92.090. The defendant alleges further that the prosecutor in King County has a system for screening individuals charged with at least a third felony for the purpose of selecting those individuals against whom the habitual criminal information would be filed. He alleges that in certain instances individuals with four or five prior felony convictions have been sentenced on a later felony conviction and an habitual criminal information has not been filed subsequently.

The prosecutor concedes there have been persons with criminal records for two or more prior felony convictions who have not been charged as an habitual criminal. The prosecutor further alleges that there is in effect in the King County Prosecutor's Office a procedure for screening individuals charged with a third felony for the purpose of selecting those individuals against whom the habitual criminal information should be filed. Charges involving defendants whose criminal records indicate they would meet the King County Prosecutor's criteria for habitual criminal status have been assigned to deputies whose responsibility it is to determine whether the defendants were represented by counsel at the time of their prior convictions, the amount of time between those convictions, the nature and facts of the previous convictions, the availability of the necessary documents and the means for establishing the identity of the defendant as the person who committed the previous crimes. The deputy to whom the prosecution of the candidate for habitual criminal status has been assigned also prepares a resume of the pending charge and determines, if possible, the extent of the defendant's criminal activity in the area.

This information is presented to a supervisors' meeting which determines whether an habitual criminal charge will be filed. The supervisors consider whether the habitual criminal status can be established, the severity of the present offense charged, the severity of past offenses and the frequency of offenses. In addition, consideration is given to the appropriate punishment, the opportunity for and possibility of rehabilitation and the potential danger of the defendant to the community.

Defendant claims that the habitual criminal statute is selectively enforced, that selective enforcement violates that statute, RCW 9.92.090, and that selective enforcement violates due process and the equal protection of the law.

A purpose of the privileges and immunities clause of article 1, section 12 of the Washington State Constitution and of the equal protection clause of the fourteenth amendment of the United States Constitution is to secure equality of treatment to all persons without undue favor on the one hand or discrimination on the other. Statutes may not grant to any citizen or class of citizens privileges or immunities which do not belong equally to all citizens upon the same terms. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). The achievement of equal treatment requires that legislation apply alike to all persons within a class and that reasonable grounds exist for distinguishing between those within and without a designated class. Faxe v. Grandview, 48 Wash.2d 342, 294 P.2d 402 (1956); State ex rel. Bacich v. Huse, 187 Wash. 75, 59 P.2d 1101 (1936). These constitutional clauses have been held to be substantially identical. Consequently, the decisions and interpretations of the United States Supreme Court and the Washington State Supreme Court are to be read together, similarly construed and reconciled subject to the supremacy of the decisions of the United States Supreme Court. Texas Co. v. Cohn, 8 Wash.2d 360, 112 P.2d 522 (1941).

Every denial of a right conferred by state law does not necessarily involve a denial of the equal protection of the laws. The administration by state officers of a state statute which is fair on its face but which results in an unequal application of the law to citizens is not a denial of equal protection unless there is shown to be present an element of intentional or purposeful discrimination. A discriminatory purpose must be shown clearly by one claiming discrimination since such a purpose cannot be presumed. Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944). See also Yick Wo v. Hopkins, Supra.

A prosecutor need not prosecute all possible violators of the law in order for a statute to be constitutional. In State v. Jacobsen, 78 Wash.2d 491, 477 P.2d 1 (1970), the contention was made that the defendant was denied the equal protection of the law because the prosecutor did not proceed against others claimed to be equally guilty. The court pointed out that there was not an assertion or any proof offered that the prosecutor's conduct was without reasonable justification or constituted an intentional or purposeful discrimination in the enforcement of the law. Prosecutors in each county under the Washington State system may elect whether or not to prosecute, may decide about the existence of probable cause or submit the decision to a justice of the peace, and may ask for one punishment or for another. The state and federal protections do not dictate that every person charged with a crime be treated exactly the same as every other person charged with the same crime. State v. Kanistanaux, 68 Wash.2d 652, 414 P.2d 784 (1966).

A statute may provide for alternative punishments and not violate the clauses of the state and federal constitutions calling for equal treatment. State v. Saylors, 70 Wash.2d 7, 422 P.2d 477 (1966). Likewise, the application of a statute which grants to a trial judge a discretion within prescribed limits as to the duration of sentence or the place of incarceration is not a denial of equal protection. State v. Barton, 75 Wash.2d 947, 454 P.2d 381 (1969); State v. Pitts, 3 Wash.App. 748, 477 P.2d 642 (1970).

RCW 9.92.090 defines the status of being an habitual criminal. State v. Tatum, 61 Wash.2d 576, 379 P.2d 372 (1963). Having denominated the attainment of being an habitual criminal as a status rather than as a crime in itself, the law gives the prosecuting attorney power to elect to charge or not to charge an individual with having reached the status. State v. Kanistanaux, Supra; In re Frye v. Delmore, 47 Wash.2d 605, 288 P.2d 850 (1955); State v. West, ...