CRIMES ‑- SUSPENDED SENTENCES ‑- ESTABLISHMENT OF A TERMINATION DATE THEREFOR

CRIMES ‑- SUSPENDED SENTENCES ‑- ESTABLISHMENT OF A TERMINATION DATE THEREFOR

A court, upon granting a suspended sentence under RCW 9.92.060 to a person who has been convicted of a crime rendering him eligible for such a suspended sentence, may not establish a termination date therefor which is later than the time the sentence imposed would have elapsed if it were not suspended, even though the sentence actually imposed was less than the maximum sentence permitted for the crime in question.

                                                              - - - - - - - - - - - - -

                                                                December 1, 1971

Honorable Earl F. Angevine
Prosecuting Attorney
Skagit County
Court House Annex
Mount Vernon, Washington 98273

                                                                                                                 Cite as:  AGO 1971 No. 39

Dear Sir:

            This is written in response to your recent letter requesting our opinion on a question which we paraphrase as follows:

            May a court, upon granting a suspended sentence under RCW 9.92.060 to a person who has been convicted of a crime rendering him eligible for such a suspended sentence, establish a termination date therefor which is later than the time the sentence imposed would have elapsed if it were not suspended, where the sentence actually imposed was less than the maximum sentence permitted for the crime in question?

            We answer this question in the negative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            RCW 9.92.060, commonly known as the suspended sentence  [[Orig. Op. Page 2]] act, provides in material part as follows:

            "Whenever any person shall be convicted of any crime except murder, burglary in the first degree, arson in the first degree, robbery, carnal knowledge of a female child under the age of ten years, or rape, the court may in its discretion, at the time of imposing sentence upon such person, direct that such sentence be stayed and suspended until otherwise ordered by such court, and that the sentenced person be placed under the charge of a parole or peace officer during the term of such suspension, upon such terms as the court may determine: . . ."

            In its opinion inState v. Davis, 56 Wn.2d 729, 355 P.2d 344 (1960), the Washington court highlighted the various distinctions which exist between a suspended sentence under this statute and a deferred sentence under RCW 9.95.200 through 9.95.250, referred to therein as the probation act.  One of the distinctions there noted was that under the then existing statutes, a suspended sentence ". . . may be kept hanging over the person sentenced 'until otherwise ordered' by the court . . ." whereas a deferred sentence may only continue ". . . 'for such period of time, not exceeding the maximum terms of sentence,' as the court shall determine."  Compare, RCW 9.92.060 with RCW 9.95.210.

            It was by way of an apparent response to this decision (albeit, somewhat belated) that the 1971 session of our state legislature enacted chapter 188, Laws of 1971, 1st Ex. Sess.  Although your letter refers, specifically, to § 2 of this enactment, the brevity of the act justifies our setting forth its provisions in full, as follows:

            "AN ACT Relating to crimes and punishments for criminal offenses; and creating new sections.

            ". . .

            "NEW SECTION. Section 1. In all cases prior to the effective date of this act wherein the execution of sentence has been suspended  [[Orig. Op. Page 3]] pursuant to RCW 9.92.060, such person may apply to the court by which he was convicted and sentenced to establish a definite termination date for the suspended sentence.  The court shall set a date no later than the time the original sentence would have elapsed and may provide for an earlier termination of the suspended sentence.

            "NEW SECTION. Sec. 2. In the case of a person granted a suspended sentence under the provisions of RCW 9.92.060, the court shall establish a definite termination date for the suspended sentence.  The court shall set a date no later than the time the original sentence would have elapsed and may provide for an earlier termination of the suspended sentence.

            "NEW SECTION. Sec. 3. Upon termination of any suspended sentence under RCW 9.92.060 or RCW 9.95.210, such person may apply to the court for restoration of his civil rights.  Thereupon the court may in its discretion enter an order directing that such defendant shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted."

            The resolution of your question, of course, turns upon the meaning to be given to the phrase "original sentence" as used in the concluding sentence of both §§ 1 and 2 of this enactment.  In determining this issue, it is important to note another distinction between a suspended and a deferred sentence which was noted in State v. Davis, supra.  Under the suspended sentence act the court, upon conviction of the accused, actually imposes a sentence and then merely suspends the execution thereof.  On the other hand, under the probation act (RCW 9.95.200 ‑ 9.95.250), the very imposition of a sentence may be deferred.  Accord,State v. Proctor, 68 Wn.2d 817, 415 P.2d 634 (1966);  [[Orig. Op. Page 4]] State v. Shannon, 60 Wn.2d 883, 376 P.2d 646 (1962); State v. Farmer, 39 Wn.2d 675, 237 P.2d 734 (1951); and State v. Liliopoulos, 165 Wash. 197, 5 P.2d 319 (1931).

            The language of RCW 9.95.210, which is to be contrasted with that of §§ 1 and 2 of chapter 188,supra, quite apparently recognizes this distinction.  As indicated by the quote appearing in State v. Davis,supra, RCW 9.95.210 provides that:

            "'The court in granting probation, may suspend the imposing or the execution of the sentence and may direct that such suspension may continue for such period of time,not exceeding the maximum term of sentence, . . . as it shall determine.'"  (Emphasis supplied.)

            In the case of the 1971 enactment which your question has placed before us, however, there appears an equally clear legislative recognition that in the case of any suspended sentence, there will actually have been a specific sentence imposed upon the convicted person.  This sentence will be coextensive with the maximum sentence allowed by law for the particular crime in the case of most felonies (see, RCW 9.95.010) but it may be less than this maximum in the case of misdemeanors ‑ to which you have specifically referred in your letter.  Accordingly, instead of expressing the maximum duration of a suspended sentence in terms of the maximum sentence which could have been imposed for the particular crime, the legislature has, instead, keyed the maximum term of a suspended sentence to the term of the "original sentence" actually imposed.

            In our judgment, §§ 1 and 2 of chapter 188, supra, are plain, clear and unambiguous in this respect, thus requiring a negative answer to your question (as paraphrased).  Moreover, even if these statutes were deemed to be ambiguous, the same conclusion would be reached through the applicable principles of statutory construction.  Without doubt, both RCW 9.92.060 itself and §§ 1 and 2 of chapter 188, Laws of 1971, 1st Ex. Sess.,supra, are "penal" statutes; i.e., statutes which punish.  Securities Exchange Commission v. Starmont, 31 F.Supp. 264 (1940).  Accordingly, these  [[Orig. Op. Page 5]] statutes are governed by the rule that penal statutes are construed strictly against the state and in favor of the accused.  See, e.g.,State v. Thompson, 38 Wn.2d 774, 232 P.2d 87 (1951).  Obviously, the "original sentence" actually imposed can never exceed the maximum sentence provided for by law for the crime in question.  Therefore, a construction of §§ 1 and 2 of chapter 188, supra, which equates the term "original sentence" to the sentence which was actually imposed is the more favorable construction to be given to the legislation from the standpoint of the accused.  Thus, even if the critical language should be regarded as ambiguous, a negative answer to your question is still indicated.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General