State v. Phelan
| Decision Date | 10 November 1983 |
| Docket Number | 49420-7,Nos. 49347-2,s. 49347-2 |
| Citation | 100 Wn.2d 508,671 P.2d 1212 |
| Parties | The STATE of Washington, Respondent, v. Phillip M. PHELAN, Appellant. In the Matter of the Personal Restraint of Theodore RODRIGUEZ, Petitioner. |
| Court | Washington Supreme Court |
Phillip M. Phelan, Hoff & Cross, Geoffrey Cross, Tacoma, for appellant.
Washington Appellate Defender Julie Kesler, Kenneth Kanev, Seattle, for petitioner.
Kenneth Eikenberry, Atty. Gen., Michael Lynch, Asst. Atty. Gen., Dept. of Corrections, Patrick Sutherland, Thurston County Prosecutor, Chris Pomeroy, Deputy Pros. Atty., Olympia, for respondent.
In Reanier v. Smith, 83 Wash.2d 342, 517 P.2d 949 (1974) and In re Phelan, 97 Wash.2d 590, 647 P.2d 1026 (1982), we held that all jail incarceration in connection with a charge must be credited against the maximum and any mandatory minimum prison sentences following conviction. These consolidated cases present the issue left undecided in Phelan and Reanier--whether such jail time must be credited against the discretionary minimum term 1 set by the Board of Prison Terms and Paroles. We hold that the same constitutional considerations apply and that credit must be given in establishing the guidelines for a discretionary minimum term. Beyond this, however, we place no limitations on the Board's discretion other than those established by its own regulations.
State v. Phelan (cause 49347-2) might more properly be entitled "The Return of Phillip Phelan". In In re Phelan, supra, we held that the trial court, in sentencing Mr. Phelan for a second degree rape conviction, must order credit for all jail time served solely in connection with that charge. (Both presentence incarceration and probationary jail time were involved). Phelan, at 594-97, 647 P.2d 1026. We then remanded to the trial court for resentencing "in accordance with this opinion." Phelan, at 598, 647 P.2d 1026.
On remand, the trial court initially gave Mr. Phelan credit against his maximum term for 14 months of "straight time" (actual time served) plus 4 months of "good time" (extra credit for supposed good behavior). On the State's motion for reconsideration, however, the court deleted the "good time" credit and simply credited Mr. Phelan with 15 months and 16 days of "straight time". 2 Neither order required that Mr. Phelan's jail time be credited against the discretionary minimum term set by the Board.
Theodore Rodriguez, the petitioner in In re Rodriguez (cause 49420-7), was also convicted of second degree rape. After serving approximately 5 months of probationary jail time, Mr. Rodriguez decided he was unable to comply with certain other conditions of his probation and so informed the court. The court then revoked Mr. Rodriguez' probation and sentenced him to prison.
The Board of Prison Terms and Paroles fixed Mr. Rodriguez' discretionary minimum term at 75 months. The Board's order gives no indication of what credit, if any, it gave Mr. Rodriguez for his jail time. Though two members of the Board have stated in affidavits filed in the present appeal that they considered Mr. Rodriguez' jail time, they do not claim to have given him full credit.
Both Mr. Phelan and Mr. Rodriguez now seek an order from this court that they be given full credit for their jail time against their discretionary minimum terms. Mr. Phelan also seeks "good time" credit.
In Reanier v. Smith, supra, we held that detention of a defendant while he or she was awaiting trial or sentencing must be credited against maximum and mandatory minimum sentences.
Fundamental fairness and the avoidance of discrimination and possible multiple punishment dictate that an accused person, unable to or precluded from posting bail or otherwise procuring his release from confinement prior to trial should, upon conviction and commitment to a state penal facility, be credited as against a maximum and a mandatory minimum term with all time served in detention prior to trial and sentence.
Reanier, at 346. In In re Phelan, supra, we extended this rule to require credit of time served in jail as a condition of probation which was later revoked. Phelan, at 597, 647 P.2d 1026.
In neither Phelan nor Reanier did we address the question of credit against the discretionary minimum term set by the Board of Prison Terms and Paroles--indeed, we expressly noted in Reanier that the issue was not raised. Other courts are divided regarding the question of whether credit need be given only to the extent that the total period of incarceration exceeds the statutorily authorized maximum prison sentence or whether it must always be given. Compare Johnson v. Prast, 548 F.2d 699, 703 (7th Cir.1977) with Corley v. Cardwell, 544 F.2d 349, 353 (9th Cir.1976), cert. denied, 429 U.S. 1048, 97 S.Ct. 757, 50 L.Ed.2d 763 (1977). The view that credit should always be given appears to be the modern trend and perhaps by now the majority view. See In re Banks, 88 Cal.App.3d 864, 868, 152 Cal.Rptr. 111 (1979); Godbold v. District Court, Colo., 623 P.2d 862, 866 (1981) (Quinn, J., dissenting) and cases cited therein. Nevertheless our Court of Appeals has taken the contrary view and limited the reach of Reanier (and, presumably, Phelan ) to maximum and mandatory minimum terms. See In re Quinlivan, 22 Wash.App. 240, 243-45, 588 P.2d 1210 (1978).
We believe the decision in Quinlivan is ill-advised. A refusal to fully take into consideration presentence jail time against every aspect of a prison sentence infringes independently on at least two constitutional protections.
The first of these is the equal protection clause. That provision requires that "persons similarly situated with respect to the legitimate purpose of the law receive like treatment." Harmon v. McNutt, 91 Wash.2d 126, 130, 587 P.2d 537 (1978). Traditionally, two equal protection tests have been recognized, the "rational relationship" test and the "strict scrutiny" test. Under the first of these tests, a law is subjected to minimal scrutiny and will be upheld "unless it rests on grounds wholly irrelevant to the achievement of a legitimate state objective." Nielsen v. Washington State Bar Ass'n, 90 Wash.2d 818, 820, 585 P.2d 1191 (1978). Under the "strict scrutiny" test, in contrast, the law may be upheld only if shown to be absolutely necessary to accomplish a compelling state interest. Nielsen, at 820, 585 P.2d 1191. This stricter test applies when the law affects a "fundamental right" or creates a "suspect classification". Nielsen, at 820, 585 P.2d 1191. Only recently, the Supreme Court has also recognized an "intermediate scrutiny" test whereby the challenged law must be such as "may fairly be viewed as furthering a substantial interest of the State". Plyler v. Doe, 457 U.S. 202, 217-18, 102 S.Ct. 2382, 2395, 72 L.Ed.2d 786 (1982).
The test which has been applied to laws affecting the right of physical liberty is unclear. The Supreme Court purported to apply the rational relationship test in McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973), in which it held that "good time" credit for presentence detention did not deny equal protection. See McGinnis, at 273, 93 S.Ct., at 1061. On the other hand, the Court has, without expressly enunciating a standard, seemingly applied a somewhat stricter test in other cases implicating physical liberty. See, e.g., O'Connor v. Donaldson, 422 U.S. 563, 574-76, 95 S.Ct. 2486, 2493-94, 45 L.Ed.2d 396 (1975) (); Jackson v. Indiana, 406 U.S. 715, 723-31, 92 S.Ct. 1845, 1850-54, 32 L.Ed.2d 435 (1972) (). Where the deprivation of liberty is due to defendants' indigency, as is the case when there is a denial of credit for presentence detention due to an inability to make bail, the application of some enhanced standard of review seems even more clear. See Bearden v. Georgia, --- U.S. ----, 103 S.Ct. 2064, 2069, 76 L.Ed.2d 221 (1983) (). See also Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971); Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970). Our own cases are similarly confused. Compare State v. Rice, 98 Wash.2d 384, 399, 655 P.2d 1145 (1982) () with State v. Smith, 93 Wash.2d 329, 336 n. 2, 610 P.2d 869, cert. denied, 449 U.S. 873, 101 S.Ct. 213, 66 L.Ed.2d 93 (1980) ().
In light of the recent decision in Plyler v. Doe, supra, these cases are best reconciled by interpreting them as sub silentio applying the intermediate scrutiny or some comparable standard. Accord, Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1, 27-28, 31 (1972) (). In Plyler, this mid-tier standard was applied because the law at issue there involved both "a discrete class ... not accountable for their ... status", albeit not suspect, and an important right, albeit not fundamental. Plyler, 457 U.S., at 223, 102 S.Ct., at 2398. Physical liberty, while not recognized as "fundamental", is a basic human right and the poor, while not a suspect class, cannot be said to be fully accountable for their status. Since a denial of credit for presentence jail time involves both a deprivation of liberty in addition to that which would otherwise exist, and a classification based solely on wealth, we will apply an intermediate level of scrutiny in the present case.
The...
To continue reading
Request your trial
-
O'Day v. King County
... ... 1 The court invalidated the standards as unconstitutionally ... Page 799 ... overbroad under the state and federal free speech guarantees and invalidated other portions of KCC 6.08.050 for denying respondents equal protection of the law. We reverse ... See State v. Phelan, 100 Wash.2d 508, 513, 671 P.2d 1212 (1983); see also In re Mayner, 107 Wash.2d 512, 516-17, 730 P.2d 1321 (1986). Our determination of whether a ... ...
-
State v. Mckague
...RCW 9.94A.570, are neither a suspect nor a semi-suspect class. Manussier, 129 Wash.2d at 673, 921 P.2d 473 (citing State v. Phelan, 100 Wash.2d 508, 514, 671 P.2d 1212 (1983), overruled on other grounds, In re Matter of Mota, 114 Wash.2d 465, 788 P.2d 538 (1990)). Thus, McKague's challenge ......
-
In re Personal Restraint of Dyer
...purpose of the law receive like treatment.'"' State v. Schaaf, 109 Wash.2d 1, 17, 743 P.2d 240 (1987) (quoting State v. Phelan, 100 Wash.2d 508, 512, 671 P.2d 1212 (1983) (quoting Harmon v. McNutt, 91 Wash.2d 126, 130, 587 P.2d 537 (1978))). One of three tests may be used to determine wheth......
-
State v. Olivas
...State v. Rhodes, 92 Wash.2d 755, 600 P.2d 1264 (1979).64 Spokane v. Douglass, supra, 115 Wash.2d at 182, 795 P.2d 693.65 100 Wash.2d 508, 671 P.2d 1212 (1983).66 Brief of Appellants, at 17-20.67 E.g., Paulson v. County of Pierce, 99 Wash.2d 645, 652, 664 P.2d 1202 ("[a]t the outset of any e......
-
The Constitutional Validity of the Modification of Joint and Several Liability in the Washington Tort Reform Act of 1986 Gregory C. Sisk
...153. 107 Wash. 2d 512, 730 P.2d 1321 (1986). 154. Id. at 517-19, 730 P.2d at 1324-25. 155. Id. (citing State v. Phelan, 100 Wash. 2d 508, 671 P.2d 1212 156. 100 Wash. 2d 508, 671 P.2d 1212 (1983). 157. Id. at 514, 671 P.2d at 1215; see also In re Mayner, 107 Wash. 2d at 517, 730 P.2d at 132......
-
Table of Cases
...Phegley v. Phegley (In re Phegley), 443 B.R. 154 (B.A.P. 8th Cir. 2011) . . . . . . . . . . . . . . . . . 42.05[1] Phelan; State v., 100 Wn.2d 508, 671 P.2d 1212 (1983) . . . . . . . . . . . . . . . . . . . . 77.12[7][c] Philippides v. Bernard, 151 Wn.2d 376, 88 P.3d 939 (2004) . . . . . . ......
-
Table of Cases
...168 Wn.2d 763, 230 P.3d 588 (2010): 13.3(2)(a) State v. Petrina, 73 Wn. App. 779, 871 P.2d 637 (1994): 12.8(2), 12.8(4) State v. Phelan, 100 Wn.2d 508, 671 P.2d 1212 (1983): 20.11 State v. Philips, 94 Wn. App. 313, 972 P.2d 932 (1999): 23.2(1) State v. Phillips, 65 Wn. App. 239, 828 P.2d 42......
-
§77.12 Disposition
...329, 635 P.2d 122 (1981) (juvenile must be given credit for time served if committed for the standard range); see also State v. Phelan, 100 Wn.2d 508, 671 P.2d 1212 (1983) (adult must be given credit for all presentence jail time against all prison time, including minimum term). In State v.......