OFFICERS AND OFFICES ‑- STATE ‑- PRISON TERMS AND PAROLE ‑- APPLICATION OF RCW 9.92.080 ‑- CONSECUTIVE SENTENCES

OFFICERS AND OFFICES ‑- STATE ‑- PRISON TERMS AND PAROLE ‑- APPLICATION OF RCW 9.92.080 ‑- CONSECUTIVE SENTENCES

1. A man convicted of a new felony while on parole for prior felony where the parole has not been revoked, the new sentence is concurrent with the sentence he is serving as a parolee.

2. A prisoner while serving a sentence in the penitentiary or reformatory commits a crime for which he is subsequently convicted, the second sentence is consecutive to the first.

3. A man convicted of a crime and placed on probation commits a new crime and prior to the sentencing for the second crime the probation is revoked and sentence imposed, the sentences run concurrently.

4. A man convicted of a crime and placed on probation commits a new crime and subsequent to the sentencing for the second crime the probation is revoked, the sentences run consecutively.

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                                                               December 19, 1958

Honorable James D. Skaggs
Chairman
Board of Prison Terms & Paroles
201 Institutions Building
Olympia, Washington                                                                                              Cite as:  AGO 57-58 No. 232

Dear Sir:

            In your letter, previously acknowledged, you have asked our opinion on the following questions:

            1. In the event that a man is convicted of a new felony while on parole for a prior felony, is the new sentence concurrent with or consecutive to the sentence that he is serving as a parolee?

             [[Orig. Op. Page 2]]

            2. In the event that a man is serving a sentence in the penitentiary or reformatory and commits a crime while in confinement for which he is subsequently convicted in a superior court, is the second sentence concurrent with or consecutive to the first sentence?

            3. In the event that a man who has been convicted of a crime and placed on probation commits a new crime for which he is convicted and sentenced to the penitentiary or reformatory and,prior to the sentencing for the second crime, the probation is revoked, are the sentences to be treated as concurrent or consecutive?

            4. In the event that an individual who has been convicted of a crime and placed on probation commits a new crime for which he is convicted and sentenced to the penitentiary or reformatory and, subsequent to the sentencing for the second crime, the probation is revoked, are the sentences to be treated as concurrent or consecutive?

            The answer to your first question is contained in the analysis.  The sentences run consecutively in the second and fourth instances and concurrently in the third.

                                                                     ANALYSIS

            Your questions involve an interpretation of RCW 9.92.080, which provides as follows:

            "Whenever a person shall be convicted of two or more offenses before sentence has been pronounced for either, the imprisonment to which he is sentenced upon the second or other subsequent conviction shall commence at the termination of the first or other prior term or terms of imprisonment to which he is sentenced; and whenever a person while under sentence of felony shall commit another felony and be sentenced to another term of imprisonment, such latter term shall not begin until the expiration of all prior terms:  Provided that whenever a person is convicted of two or more offenses set forth as separate counts in one indictment or information the court may, in pronouncing sentence, provide that sentences therefore shall run concurrently."

            Ordinarily, in the absence of statute, a sentence commences from the date of the judgment and sentence (RCW 9.95.060).  But our statute (RCW 9.92.080) governs certain specified situations involving two or more convictions.  Our court in the case of In re Grieve v. Smith (1946), 26 Wn. (2d) 156, 158, 173 P. (2d) 168, stated that:

            ". . . It would appear that, under this section, the legislature has intended that, as a general rule when a person  [[Orig. Op. Page 3]] is convicted of more than one offense, the sentences shall run consecutively. . . ."

            Your first question states:  In the event that a man is convicted of a new felony while on parole for a prior felony, is the new sentence concurrent with or consecutive to the sentence that he is serving as a parolee?  The answer to your first question appears to be that the two sentences run consecutively unless the fact that the man is on parole changes the result.

            Our court has ruled that a parole is not a right but a privilege to be granted or withheld according to the discretion of the board of prison terms and paroles.  State ex rel. Linden v. Bunge (1937), 192 Wash. 245, 73 P. (2d) 516. A prisoner in the penitentiary or reformatory is not entitled to release from confinement as a matter of right until he has completed his maximum sentence.  In re Butler v. Cranor (1951), 38 Wn. (2d) 471, 230 P. (2d) 306.  Even though a convicted person has been released from parole supervision, the board cannot legally waive the right to exercise the discretion imposed upon it by statute to return the parolee to confinement at any time prior to the expiration of the maximum term when it determines that the best interests of society require his incarceration.  In re Scott v. Callahan (1951), 39 Wn. (2d) 801, 239 P. (2d) 333.

            It is clear that the factual situation presented by your first question comes squarely within the second provision of RCW 9.92.080 in that the individual in question was under sentence of a felony when he committed another felony.

            A case directly in point is State ex rel. Mason v. Superior Court (1954), 44 Wn. (2d) 67, 265 P. (2d) 253.  There the petitioner was sentenced to fifteen years' imprisonment for grand larceny in 1939 and was discharged from parole supervision in 1949, ten years later.  In 1950, he was sentenced on four counts of forgery for twenty years, each to run concurrently.  No reference was made to the prior grand larceny conviction.  The record does not show that the trial court had notice that the board of prison terms and paroles had revoked petitioner's parole or intended to do so.  It was his contention that since the grand larceny sentence had five more years to run, the sentence on the forgery counts did not commence until the expiration of his previous fifteen-year maximum sentence.  In interpreting RCW 9.92.080, the court concluded that the legislature meant to provide that the latter term was not to begin until the expiration of  "incarceration under" all prior terms.  Therefore, petitioner's sentence on the forgery conviction commenced as of the date of imposition by the court of judgment and sentence.  See also In re Ashley v. Delmore (1956), 49 Wn. (2d) 1, 297 P. (2d) 958.

            The Mason case makes it clear that if the parole has not been revoked and the man reincarcerated for the first crime, the term imposed by the judgment and sentence on the second crime begins as of the date the court signs the judgment and sentence.  At that time, the two sentences will be running  [[Orig. Op. Page 4]] concurrently.  However, the result is different in the event that the parole on the first crime has been revoked prior to the imposition of sentence on the subsequent offense, in that the term for the second offense shall not begin to run until the expiration of all prior terms.

            Your second question states:  In the event that a man is serving a sentence in the penitentiary or reformatory and commits a crime while in confinement for which he is subsequently convicted in a superior court, is the second sentence concurrent with or consecutive to the first sentence?  A similar factual situation was presented in In re Ashley v. Delmore, supra, where a prisoner escaped from the county jail while waiting transfer to the reformatory under a twenty-year sentence for forgery.  Upon his capture and return, he pleaded guilty to the crime of escaping from jail as set forth in RCW 9.31.010, and was sentenced to twenty years for the crime.  After serving ten years he sought release on the theory that the second sentence was erroneous.  The court held that under the provision of RCW 9.92.080, whenever a person under sentence of a felony commits another felony and is sentenced to another term of imprisonment, the latter term does not begin until the expiration of all prior terms.

            Your third and fourth questions present two factual situations:  (1) Where the individual has been convicted of a crime and placed on probation commits a new crime for which he is convicted and sentenced to the penitentiary or reformatory and prior to the sentencing for the second crime the probation is revoked; and (2) where an individual has been convicted of a crime and placed on probation, commits a new crime for which he is convicted and sentenced to the penitentiary or reformatory and subsequent to the sentencing for the second crime the probation is revoked.  These questions present two situations involving RCW 9.92.080 as affected by the provisions of RCW 9.95.200 (the probation statute), where the defendant has been found guilty but the imposition of sentence has been deferred.

            A prisoner on probation, although having been found guilty, has never been sentenced by the court, but as in the case of a parole, probation is not a matter of right but a privilege to be conferred by the judge.  The court, in its discretion, may terminate the deferred sentence at any time and sentence the prisoner to the penitentiary or reformatory.  Consequently, the determination of whether RCW 9.92.080, supra, is applicable depends upon whether the probation granted on the first sentence has been terminated by the court at the time of sentencing on the subsequent offense.

            The answer to your third question comes within the rule laid down by our court in In re DeLano v. Cranor (1954), 44 Wn. (2d) 63, 265 P. (2d) 263.  That case involved an individual who had committed a forgery and a grand larceny prior to being charged on either.  Separate informations were filed on each crime.  He was convicted and sentenced on the grand larceny charge and subsequently convicted on the forgery charge and in connection therewith  [[Orig. Op. Page 5]] was found to be an habitual criminal.  Life sentence was imposed thereon in 1936.  In 1947 the law was amended authorizing the board to fix a minimum of fifteen years on life sentences.  Pursuant to this authority, the board fixed a minimum of fifteen years to commence with the date of the order.  Although the specific question involved in the case was when the date thus fixed commenced to run, the court held that RCW 9.92.080 did not apply to the sentences on the two charges.  After quoting the statute in question the court stated as follows:

            "Petitioner committed forgery December 5, 1935, and committed grand larceny about six days later.  The informations charging both offenses were filed December 19, 1935.  Petitioner was convicted on the grand larceny charge February 28, 1936, and sentenced March 5, 1936.  On July 18, 1936, an amended information was filed upon the forgery charge.  He was convicted on such charge and found to be an habitual criminal July 22, 1936.  The sentence was imposed October 5, 1936.  It will thus be seen that neither part of the foregoing statute applies to petitioner.  He was not convicted of two offenses before sentence had been pronounced for either of them, nor did he commit a felony while under sentence for another felony.

            ". . .

            ". . . There was no question of sentences running consecutively involved.  From March 5, 1936, to October 5, 1936, the sentence on the grand larceny charge ran alone, but from the latter date it ran concurrently with the life sentence until the former expired.  The Board fixed a minimum term of fifteen years on the grand larceny conviction, which would expire, if time for good behavior was earned and granted, in ten years.  The Board was not authorized to fix a minimum term of the life sentence until June 11, 1947. . . ."

            Thus, where an individual who has been convicted of a crime and placed on probation commits another crime, and prior to the conviction and sentence on the second offense, the probation has been terminated and sentence has been imposed thereon, RCW 9.92.080 is inapplicable.  Accordingly, each term will commence to run as of the date the court signs each judgment and sentence.

            The result reached, however, is different where probation has not been terminated as to the first conviction or where it has been terminated but sentence has not been imposed at the time of conviction and sentencing on the second offense.  Such a situation falls within the provisions of RCW  [[Orig. Op. Page 6]] 9.92.080, supra, inasmuch as he is a person convicted of two or more offenses before sentence has been pronounced on either, and the sentences when imposed will run consecutively.

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

Very truly yours,

JOHN J. O'CONNELL
Attorney General

MITCHELL DOUMIT
Assistant Attorney General