CRIMES ‑- USE OF DEADLY WEAPON ‑- STIPULATION OF COUNSEL

CRIMES ‑- USE OF DEADLY WEAPON ‑- STIPULATION OF COUNSEL.

A stipulation between counsel at the time of trial that a deadly weapon was used in the commission of the crime cannot be construed as being a finding of fact by the court or a special verdict by the jury that a deadly weapon as defined by RCW 9.95.040 was used in the commission of the crime charged as required by § 1, chapter 138, Laws of 1961, and should not be used by the board in fixing a mandatory minimum term of confinement under RCW 9.95.040.

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                                                                 January 29, 1962

Honorable Harris Hunter
Chairman, Board of Prison
Terms and Paroles
Institutions Building
Olympia, Washington

                                                                                                                Cite as:  AGO 61-62 No. 92

Dear Sir:

            By letter previously acknowledged, you requested an opinion upon a question which we paraphrase as follows:

            Does a stipulation of fact between counsel for the defendant and the prosecuting attorney, during the course of the jury trial upon a charge of manslaughter, that a deadly weapon as defined by RCW 9.95.040 was used in the commission of the crime charged, sufficiently comply with the provisions of § 1, chapter 138, Laws of 1961 (RCW 9.95.015), requiring the board of prison terms and paroles to fix a mandatory duration of confinement in accordance with RCW 9.95.040 relating to the commission of a crime with a deadly weapon?

            We answer your question in the negative.

                                                                     ANALYSIS

            We are advised that the information concerning the stipulation between counsel that a deadly weapon was used in the commission of the crime charged, comes to the board of prison terms and paroles in the statement of facts and recommendation of the prosecuting attorney which is required to be furnished to the board under RCW 9.95.030.

            Section 1, chapter 138, Laws of 1961 (RCW 9.95.015) provides as follows:

             [[Orig. Op. Page 2]]

            "In every criminal case wherein conviction would require the board of prison terms and paroles to determine the duration of confinement and wherein there has been an allegation and evidence establishing that the accused was armed with a deadly weapon at the time of the commission of the crime,the court shall make a finding of fact of whether or not the accused was armed with a deadly weapon, as defined by RCW 9.95.040, at the time of the commission of the crime, or if a jury trial is had, the jury shall, if it find the defendant guilty, also find a special verdict as to whether or not the defendant was armed with a deadly weapon, as defined in RCW 9.95.040, at the time of the commission of the crime."  (Emphasis supplied.)

            RCW 9.95.040, referred to in the foregoing statute, reads in pertinent part as follows:

            "Within six months after the admission of a convicted person to the penitentiary, reformatory, or such other state penal institution as may hereafter be established, the board of prison terms and paroles shall fix the duration of his confinement.  The term of imprisonment so fixed shall not exceed the maximum provided by law for the offense of which he was convicted or the maximum fixed by the court where the law does not provide for a maximum term.

            "The following limitations are placed on the board of prison terms and paroles with regard to fixing the duration of confinement in certain cases, notwithstanding any provisions of law specifying a lesser sentence, to wit:

            "(1) For a person not previously convicted of a felony but armed with a deadly weapon at the time of the commission of his offense, the duration of confinement shall not be fixed at less than five years.

            "(2) For a person previously convicted of a felony either in this state or elsewhere and who was armed with a deadly weapon at the time  [[Orig. Op. Page 3]] of the commission of his offense, the duration of confinement shall not be fixed at less than seven and one‑half years.

            "The words 'deadly weapon,' as used in this section include, but are not limited to, any instrument known as a blackjack, sling shot, billy, sand club, sandbag, metal knuckles, any dirk, dagger, pistol, revolver, or any other firearm, any knife having a blade longer than three inches, any razor with an unguarded blade, and any metal pipe or bar used or intended to be used as a club, any explosive, and any weapon containing poisonous or injurious gas."  (Section 2, chapter 138, Laws of 1961.)

            At the outset, it must be remembered that criminal statutes must be strictly construed.

            ". . . Criminal statutes, especially those inflicting a penalty of imprisonment in the penitentiary, must be strictly construed.  In re Sorenson v. Smith, 34 Wn. (2d) 659, 209 P. (2d) 479."  State v. Lewis, 46 Wn. (2d) 438, 444, 282 P. (2d) 297 (1955).

            "Strict construction of a penal statute means merely that the punitive sanctions must be confined to such matters as are clearly and manifestly within the statutory terms and purposes.  It does not mean that a forced, narrow, and over-strict construction should be applied to defeat the obvious intent of the legislature. . . ."State v. Rinkes, 49 Wn. (2d) 664, 667, 306 P. (2d) 205 (1957).

            Manifestly, § 1 chapter 138, Laws of 1961 (RCW 9.95.015), supra, is a penal statute and when applied in conjunction with RCW 9.95.040, it is concerned with the term of imprisonment which a convicted person may be required to serve in a state penal institution.

            It is clear from the information supplied to us, that the court did not make a finding of fact upon the issue of a deadly weapon nor, did a jury return a special verdict finding that the defendant was armed with a deadly weapon, as defined by RCW 9.95.040, at the time of the commission of the crime, as required by § 1, chapter 138, Laws of 1961, quoted above.  Although § 1, chapter 138, Laws of 1961,  [[Orig. Op. Page 4]] quoted above, makes no provision for stipulations between counsel of the facts relating to the use of a deadly weapon in the commission of a crime, such a stipulation could form the basis for a finding of fact by the court, or a special verdict by a jury on that subject.  But standing alone, such stipulation cannot be a substitute for, or construed as being a finding of fact by the court, or a special verdict by the jury of whether or not the accused was armed with a deadly weapon at the time of the commission of the crime as required by § 1, chapter 138, Laws of 1961.  To determine that the mere stipulation between defense counsel and the prosecuting attorney during the course of the trial, that a deadly weapon was used in the commission of the crime, as being sufficient to satisfy the requirements of § 1, chapter 138, Laws of 1961, would be to render impotent the procedure outlined therein by the legislature.

            Accordingly, we are of the opinion that a stipulation between defense counsel and the prosecuting attorney that a deadly weapon was used in the commission of the crime, is not, procedurally, in compliance with the requirements as set forth in § 1, chapter 138, Laws of 1961, and should not be used by the board of prison terms and paroles as authority to fix a mandatory minimum term of confinement under the provisions of RCW 9.95.040.

            We feel constrained to point out that our opinion should not be construed as concluding that the board of prison terms and paroles is prevented from fixing a minimum term of confinement of such duration not exceeding the maximum sentence fixed by the court, and consistent with the provisions of chapter 9.95 RCW, as in the board's opinion seems to be in the best interest of the public and the convicted person, although such minimum term would not be of a mandatory character as required by RCW 9.95.040.

            We trust that our analysis of your inquiry will be of assistance.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

THOMAS R. GARLINGTON
Assistant Attorney General