State v. Rowe, 46280

• Decision Date: 17 April 1980
• Docket Number: No. 46280,46280
• Citation: 609 P.2d 1348,93 Wn.2d 277
• Parties: STATE of Washington, Respondent, v. Edgar Ammon ROWE, Petitioner.
• Court: Washington Supreme Court

Page 277

93 Wn.2d 277

609 P.2d 1348

STATE of Washington, Respondent, v. Edgar Ammon ROWE, Petitioner.

No. 46280.

Supreme Court of Washington, En Banc.

April 17, 1980.

Seattle King County Public Defender Association, Lewis H. Nomura, Seattle, for petitioner.

Norm Maleng, Pros. Atty., Thomas E. Kelly, Jr., Deputy Pros. Atty., Seattle, for respondent.

STAFFORD, Justice.

On August 30, 1977 the defendant, Edgar Rowe, was convicted of unlawfully and feloniously possessing a narcotic drug with intent to manufacture or deliver the same. Thereafter, the King County Prosecuting Attorney filed a supplemental information, pursuant to RCW 9.92.090, alleging he was an habitual criminal. It was alleged defendant had been convicted of two prior felonies, i. e. second degree burglary in 1959 and robbery in 1972.

Prior to trial on the supplemental information, defendant moved to dismiss the habitual criminal charge asserting the Prosecutor's written standards for filing the charges were unconstitutional. ¹ The only evidence made available to the trial court was a written stipulation that the Prosecuting Attorney had used written standards to determine whether habitual criminal charges should be filed. A copy of the standards was attached to the stipulation. Based solely on the stipulation and the attached standards, the trial court ruled that defendant had been denied equal protection and due process of law under both the United States and Washington State constitutions. The supplemental information was dismissed. Defendant was sentenced on the narcotics charge without regard for the enhanced sentence authorized by RCW 9.92.090.

The State appealed the order of dismissal assigning error to findings of fact 5-9 and the conclusions of law based thereon. The Court of Appeals reversed and remanded the trial court's order of dismissal. We granted defendant's petition to review the Court of Appeals decision.

We shall confine ourselves to the issue presented in the petition for review. Issues that are not raised in the petition will not be considered unless we conclude the solution of additional issues demands otherwise. El Coba Co. Dormitories v. Franklin County PUD, 82 Wash.2d 858, 860, 514 P.2d 524 (1973). The sole issue raised in defendant's petition for review is whether the King County Prosecutor's current standards for filing habitual criminal actions violate either due process or equal protection of the law. We hold the standards violate neither constitutional provision and affirm the Court of Appeals.

Primarily defendant's petition is based upon the trial court's findings of fact and conclusions of law. Thus, we must analyze them to determine the merit of defendant's position. Initially we note the trial court's findings stem exclusively from the stipulation and attached standards rather than from the testimony of witnesses. We are therefore not bound by the findings. Where the interpretation of a document must be made from the face of the instrument itself, this court is in as good a position as the trial court to interpret its meanings. Angelus v. Government Pers. Life Ins. Co., 51 Wash.2d 691, 692, 321 P.2d 545 (1958); In re Black, 47 Wash.2d 42, 45, 287 P.2d 96 (1955); see also In re Estate of Larson, 71 Wash.2d 349, 354, 428 P.2d 558 (1967).

By way of general observation, we note the standards create two major classes of felonies for the purpose of applying RCW 9.92.090. The first category has been denominated "high impact" crimes. This class, composed of the most serious crimes encompasses such felonies as murder in the first and second degree, manslaughter in the first degree, rape in the first and second degree, robbery in the first or second degree and extortion in the first degree. Included among "high impact" crimes is the possession or sale of narcotics or dangerous drugs valued at more than $1,000, the felony committed by defendant. All crimes included in this class have both a high societal impact and a serious personal impact upon the victims. The second category has been denominated "expedited" crimes. This category includes thefts of less than $500 from other than the person, burglaries from other than residences, forgeries, credit card thefts, malicious destruction of property and possession of small amounts of narcotics or dangerous drugs kept for personal use. For the most part, the latter class of felonies does not involve a threat of serious injury to the victim or a serious impact upon society. Between these two categories fall all the other felonies, none of which is at issue here.

Turning first to findings 5 and 7 we note the trial court determined the standards require that individuals who commit "high impact" crimes and who have two valid prior convictions must automatically be proceeded against as habitual criminals without regard for mitigating circumstances; conversely, persons last convicted of "expedited" crimes are automatically excluded from being charged as habitual criminals unless they fall within certain specified exceptions. ² We do not agree. The source of the trial court's reasoning is undoubtedly Section 1051 V A.1. of the Prosecutor's written standards which provides that "(a) habitual criminal allegation shall be made in all cases in which a defendant is both: a. presently charged with a high impact crime; and b. has at least two (constitutionally valid) felony convictions . . ." (Italics ours.) Additionally, Section 1051 V A.2. states: "A habitual criminal allegation shall not be made in any other case except pursuant to the exception policy". However, our reading of all the pertinent provisions of the standards convinces us that individuals who commit a "high impact" crime and who have two prior felonies may, but need not always be charged.

Section IV entitled EXCEPTIONS provides in pertinent part:

A. WHEN ALLOWED

1. Exceptions to these policies may be made in any case

C. CRITERIA

1. The following criteria for granting exceptions are not intended to be exclusive but as illustrative.

2. Less Severe Sanctions

a. Exceptions involving reduced degrees, less loss of liberty or the dropping of special allegations may be made:

(2) where the defendant is able to provide information or testimony that will reasonably lead to the conviction of others who are responsible for more serious criminal conduct or who represent a greater danger to the public interest ;

(3) where specific factors present require the reduction or elimination of punishment on grounds of mercy ;

(4) where conviction of the original charge or imposition of the minimum punishment would constitute a manifest injustice.

(Italics ours.)

The foregoing exceptions are not limited to "expedited" crimes. Section 1051 IV plainly provides that exceptions may be made in any case. Several nonexclusive illustrative examples are provided, any one of which would be applicable to "high impact" crimes.

Without question Section 1051 V A.1. provides that "(a) habitual criminal allegation shall be made in all (high impact crime) cases". (Italics ours.) It is clear, however, that the word shall must be considered directory rather than mandatory or the language of Section 1051 IV A. and C., which deals with exceptions applicable to any case, would be rendered meaningless. See State v. McDonald, 89 Wash.2d 256, 262-63, 571 P.2d 930 (1977). In addition, such a view would unnecessarily render the standards unconstitutional. If possible, such standards should be read in a manner consistent with the requirements of due process and equal protection. By way of analogy see Hayes v. Yount, 87 Wash.2d 280, 290, 552 P.2d 1038 (1976).

We also disagree with the trial court's determination, in finding of fact 6, that the standard's "exception policy for imposing more severe sanctions does not apply to the Habitual Criminal Procedures." The record is devoid of support for this position. The finding is contradicted by the exception's logical placement within the standard's scheme and by the plain language of Section 1051 IV which encompasses the exceptions, their method of employment and the criteria for granting them. Section 1051 IV C.3. specifically provides for the use of "More Severe Sanctions" as follows:

(1) where specific factors involving public safety make imposition of the specified period of loss of liberty inadequate to protect the public;

(2) where the sentence indicated by these policies would unduly depreciate the seriousness of the crime involved.

We now address findings 8 and 9 which are in reality mixed findings of fact and conclusions of law. In these the trial court concludes that the classifying of felonies as either "high impact" or "expedited" is an arbitrary and capricious method of selecting people to prosecute as habitual criminals. ³ We do not agree.

Arbitrary and capricious action has been defined as willful and unreasoning action, without consideration and in disregard of facts and circumstances. DuPont-Fort Lewis Sch. Dist. 7 v. Bruno, 79 Wash.2d 736, 739, 489 P.2d 171 (1971). See also McDonald v. Hogness, 92 Wash.2d 431, 598 P.2d 707 (1979). Where there is room for two opinions, action is not arbitrary and capricious even though one may believe an erroneous conclusion has been reached. DuPont-Fort Lewis Sch. Dist. 7 v. Bruno, supra ; Miller v. Tacoma, 61 Wash.2d 374, 390, 378 P.2d 464 (1963).

The mere act of classifying crimes is not arbitrary and capricious. Further, the classification of felonies as "high impact" and "expedited" crimes for the purpose of determining whether an habitual criminal charge should be filed is not only reasonable and logical, it permits an objective approach consistent with pragmatic and due process values. As we note above, "high impact" crimes are a class of serious felonies having both a high societal impact and a serious personal impact upon victims. Conversely, those felonies categorized as "expedited" crimes generally do not involve a threat of serious injury...