Appeal from Superior Court of Douglas County. Docket No: 95-1-00058-8. Date filed: 06/28/95. Judge signing: Hon. Ted W. Small Jr.
Authored by Dennis J. Sweeney. Concurring: Frank L. Kurtz, Stephen M. Brown.
The opinion of the court was delivered by: Sweeney
SWEENEY, C.J. Sentences imposed under the Sentencing Reform Act of 1981 (SRA) are determinate. State v. Shove, 113 Wash. 2d 83, 86, 776 P.2d 132 (1989). A determinate sentence means one that "states with exactitude the number of actual years, months, or days of total confinement . . . ." RCW 9.94A.030(16). Michelle Walker entered a plea of guilty to attempted murder in the second degree and burglary in the first degree. The sentencing court held that Ms. Walker did not "fit under the guidelines of [[the__ SRA . . . ." It imposed a 102-month sentence for the attempted second degree murder and a 34-month sentence for the first degree burglary, to be served concurrently. It ordered Ms. Walker released after 60 months if she successfully completed counseling. The State appeals. We reverse and remand for resentencing.
Ms. Walker has a history of mental health problems, including an obsession with female teachers. In 1994 she began obsessing on her high school volleyball coach, Lori Armstrong. Ms. Walker sent Ms. Armstrong flowers and letters and made numerous harassing telephone calls to her. On January 6, 1995, Ms. Walker vandalized Ms. Armstrong's car. On February 5, she entered Ms. Armstrong's residence armed with a knife and hid in a bedroom closet. When Ms. Armstrong returned home, she noticed damage to the outside of the house. She left to contact police. When found inside Ms. Armstrong's closet, Ms. Walker said she had wanted to kill Ms. Armstrong.
The juvenile court declined jurisdiction. On May 19, 1995, Ms. Walker entered a plea of guilty. A presentence report indicated that she had not benefited from previous therapy. Her personality profile indicated she is alienated, angry, and has signs of an "early onset of a sociopathic behavior pattern . . . ."
Based on her offender score, the standard range sentence for the attempted murder offense was 92 to 123 months and 23 to 34 months for the burglary. The State asked the court to impose a sentence of 92 months. Ms. Walker requested a sentence of 36 months. The court sentenced Ms. Walker to 102 months for the attempted murder and 34 months for the burglary, the sentences to run concurrently. It ordered Ms. Walker released on community placement after 60 months if she successfully completed counseling. The court ruled that the suspended sentence was justified because the facts given were extremely exceptional, and simply the standard sentence range allowed for this Court does provide for the punishment aspect of your conduct. It does provide for a deterrence. It does provide for safety for our community. But it does nothing for your treatment, and it does nothing with regard to the reasons behind your conduct on that day. And to ignore that, when the legislature has told this Court to focus on your conduct, to ignore the reasons for your conduct, I think, would be a miscarriage of Justice. So I think this Court should retain that ability to suspend the balance of your sentence, if and when the facts deem that that is warranted. This appeal follows.
Prior to the SRA, a sentencing court could "assess the reform occurring in the prisoner and adjust the terms of the sentence to further and reward that change." David Boerner, Sentencing in Washington, at 4-1 (1985); see In re Personal Restraint of Borders, 114 Wash. 2d 171, 177, 786 P.2d 789 (1990) (observing that indeterminate sex offender could be evaluated to determine whether amenable to treatment and trial Judge could suspend sentence and place defendant on probation). The SRA, however, rejected the concept of indeterminacy. Boerner, (supra) at 4-1. *fn1 Sentences imposed under the SRA are determinate. Shove, 113 Wash. 2d at 86.
In Shove, the sentencing court modified the defendant's sentence and ordered her released after she served only 5 months of a 12-month sentence. The Supreme Court reversed. It noted that the SRA did not authorize suspension of a defendant's sentence. Shove, 113 Wash. 2d at 86-87. Similarly, in In re Sentence of Chatman, 59 Wash. App. 258, 796 P.2d 755 (1990), the defendant was sentenced to 57 months' confinement. The sentencing court suspended 33 months of the sentence and directed the defendant to complete drug treatment as a condition of the sentence. Holding that the sentencing court was without authority to suspend the sentence or order community supervision, Division One remanded for resentencing. Chatman, 59 Wash. App. at 262.
Unless one of the limited exceptions applies, the SRA expressly requires that "no person serving a sentence imposed pursuant to this chapter and committed to the custody of the department shall leave the confines of the correctional facility or be released prior to the expiration of the sentence . . . ." RCW 9.94A.150. The limited exceptions include authorized furlough, clemency, pardon, or release within 10 days of release date. RCW 9.94A.150(2)-(8). None of those exceptions apply here. Thus, Ms. Walker's release after 60 months would allow her to leave confinement before the expiration of her sentence. This is contrary to the SRA which abolished a sentencing court's power to suspend a sentence. RCW 9.94A.130. *fn2 We are therefore constrained to hold that Ms. Walker's sentence is not authorized or allowed by the SRA.
Moreover, if a sentencing court is allowed to tailor its own remedies, the potential exists for "widely disparate sentencing that does violence to the principles of the SRA." State v. Harper, 62 Wash. App. 69, 75, 813 P.2d 593 (1991), review denied, 118 Wash. 2d 1017, 827 P.2d 1011 (1992). The SRA is to be interpreted in a manner that "ensures the structuring of trial court discretion." Shove, 113 Wash. 2d at 89. Although well-intentioned, the sentence here conflicts with one of the stated principles of the SRA, that is, one defendant's punishment should be commensurate with the punishment imposed on another defendant committing a similar offense. RCW 9.94A.010(3). The disparate result of the court's sentence in this case is directly contrary to the SRA. Harper, 62 Wash. App. at 77.
Because we cannot say what sentence the court would otherwise have imposed, we ...