In Re Personal Restraint of Hopkins

976 P.2d 616
CourtWashington Supreme Court
DecidedMay 6, 1999
Docket66504-4
StatusPublished
Cited by18 cases

This text of 976 P.2d 616 (In Re Personal Restraint of Hopkins) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Personal Restraint of Hopkins, 976 P.2d 616 (Wash. 1999).

Opinion

976 P.2d 616 (1999)
137 Wash.2d 897

In re Personal Restraint Petition of Thomas J. HOPKINS, Petitioner.

No. 66504-4.

Supreme Court of Washington, En Banc.

Argued February 9, 1999.
Decided May 6, 1999.

Eric Nielsen, Seattle, for Petitioner.

Thomas Hopkins, Medical Lake, Pro Se.

Norm Maleng, King County Prosecutor, Ann M. Foerschler, Deputy, Seattle, for Respondent.

JOHNSON, J.

Petitioner claims his 81-month sentence for "solicitation to deliver cocaine" exceeds the statutory maximum for that crime. Holding that the statutory maximum sentence was doubled to 10 years under the sentencing doubling provisions of RCW 69.50.408, the Court of Appeals found the sentence within the maximum allowed by law and denied the petition. In re Personal Restraint of Hopkins, 89 Wash.App. 198, 203, 948 P.2d 394 (1997). We reverse.

Petitioner, Thomas Hopkins, pleaded guilty to solicitation to deliver cocaine. The trial court sentenced him to 81 months in prison. Petitioner did not appeal. Subsequently, however, he filed a personal restraint petition in the Court of Appeals. Petitioner claimed the crime for which he was convicted, solicitation to deliver cocaine, is a class C felony subject to a statutory maximum 5-year term. The Court of Appeals agreed with petitioner that solicitation to deliver cocaine is a class C felony ordinarily punishable up to a statutory maximum 5year sentence. Hopkins, 89 Wash.App. at 200, 948 P.2d 394. Nevertheless, the Court of Appeals affirmed petitioner's 81-month sentence, a term which exceeds the statutory maximum by 21 months. The Court of Appeals concluded the sentence was within the maximum term allowed by law because petitioner had prior drug convictions and, thus, the statutory maximum term was subject to doubling under RCW 69.50.408. Hopkins, 89 Wash.App. at 200, 202-03, 948 P.2d 394. Specifically, the Court of Appeals held "that inchoate offenses, such as solicitation, are included within RCW 69.50 for purposes of the doubling provision when the underlying crime is defined in that chapter." Hopkins, 89 Wash.App. at 203, 948 P.2d 394. Accordingly, the Court of Appeals denied the petition.

We granted review.

*617 ANALYSIS

The class of felony for which a defendant is convicted determines the maximum sentence. RCW 9A.20.021. Solicitation is classified one class below the classification of the underlying crime solicited. RCW 9A.28.020; RCW 9A.28.030. Thus, for example, if the underlying crime is a class B felony, solicitation of that crime is a class C felony. RCW 9A.28.020(3)(c); RCW 9A.28.030.

In the present case, the underlying crime solicited by the petitioner was "delivery of cocaine." Delivery of cocaine is prohibited under the Uniform Controlled Substances Act, RCW 69.50.401. A conviction for delivery of cocaine carries a maximum sentence of 10 years. RCW 69.50.401(a)(1)(i). In any prosecution for solicitation under 9A.28.030, where the underlying crime is defined by statute other than in RCW Title 9A, the classification of the underlying offense depends upon the maximum sentence for that offense. RCW 9A.28.010. An offense that carries a maximum sentence of 10 years is a class B felony. RCW 9A.28.010(2). See also RCW 9.94A.035(2) (a felony not defined in Title 9A that carries a maximum sentence of more than 8 years but less than 20 is a class B felony). Solicitation to deliver cocaine is, therefore, a class C felony. RCW 9A.28.020(3)(c). A class C felony is punishable up to a maximum 5-year term. RCW 9A.20.021(1)(c).[1]

The question is whether the sentencing doubling provisions contained in RCW 69.50.408 apply to petitioner's current conviction, thereby doubling the maximum term that would otherwise apply. Under RCW 69.50.408, any person "convicted of a second or subsequent offense under this chapter may be imprisoned for a term up to twice the term otherwise authorized ...." (emphasis added). Petitioner concedes he has prior convictions under RCW 69.50. He argues, however, solicitation to deliver cocaine is not an offense "under" RCW 69.50. We agree.[2]

In general, Washington law criminalizes three inchoate or "anticipatory" offenses: attempt; solicitation; and conspiracy. RCW 9A.28.020, .030, .040. In contrast, the Uniform Controlled Substances Act, RCW 69.50, expressly includes only attempt and conspiracy as specific offenses under that chapter. RCW 69.50.407. The crime of solicitation is conspicuously absent.

We adhere to the rule of expressio unius est exclusio alterius — specific inclusions exclude implication. State v. Sommerville, 111 Wash.2d 524, 535, 760 P.2d 932 (1988).

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976 P.2d 616, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-personal-restraint-of-hopkins-wash-1999.