In Re the Personal Restraint of Fletcher

776 P.2d 114, 113 Wash. 2d 42, 1989 Wash. LEXIS 88
CourtWashington Supreme Court
DecidedJuly 13, 1989
Docket54099-3
StatusPublished
Cited by52 cases

This text of 776 P.2d 114 (In Re the Personal Restraint of Fletcher) 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 the Personal Restraint of Fletcher, 776 P.2d 114, 113 Wash. 2d 42, 1989 Wash. LEXIS 88 (Wash. 1989).

Opinions

Callow, C.J.

The defendant, Douglas S. Fletcher, pleaded guilty to first degree kidnapping, first degree robbery, and first degree assault. He subsequently was sentenced to three 33-year terms to run consecutively. Fletcher contends that the imposition of consecutive sentences violates double jeopardy and merger principles. We disagree.

I

On February 21, 1979, Douglas Fletcher and Ivan Dishon made plans to rob the Agate store. While driving to the store, they decided that they needed another vehicle to commit the robbery, as they were currently using Fletcher's parents' car. When they pulled up to an intersection, Dishon jumped out of the car and forced his way into another car at gunpoint. The car was occupied by two women. Dishon drove the women's car, and Fletcher followed in his parents' car. The pair drove several miles to a [44]*44deserted logging road, where Dishon ordered the women to get out of the car. Fletcher and Dishon told the women to begin walking up the road. Both women were pleading for mercy and eventually got down on their knees to beg. Fletcher shot one woman, while Dishon shot the other woman and then shot the first woman a second time. After the shooting, Dishon and Fletcher drove off, leaving the women to die. Both women were shot in the head and were seriously and permanently injured. The men were arrested later that evening.

On February 22, 1979, the Mason County Prosecutor filed an information charging Fletcher with two counts of first degree kidnapping, two counts of first degree assault, one count of first degree robbery, and one count of auto theft. On March 27, 1979, the prosecutor filed an amended information, charging Fletcher and Dishon jointly with the same counts. The information also included a statement that Fletcher and Dishon were armed with deadly weapons or firearms as defined by RCW 9.95.040 and former RCW 9.41.025 at the time of the commission of the crimes.1 On April 12, 1979, Fletcher pleaded guilty to first degree kidnapping, first degree assault, and first degree robbery in connection with the attack on one of the women. The information describes the three counts to which Fletcher pleaded guilty as follows:

Count I [kidnapping]
That. . . FLETCHER ... on or about February 21, 1979, did with intent to facilitate commission of a felony of robbery and flight thereafter, or with intent to inflict bodily injury on [the victim], or with intent to inflict extreme emotional distress on [the victim], did intentionally abduct the said [the victim].
Count III [assault]
That . . . FLETCHER ... on or about February 21, 1979, with intent to kill [the victim], ... or with intent to commit [45]*45the felony of robbery upon the person or property of [the victim], did assault such person with a firearm or deadly weapon.
Count V [robbery]
That. . . FLETCHER ... on or about February 21, 1979, did unlawfully take personal property, to-wit: a 1972 Datsun stationwagon [sic], from the person and in the presence of [the victim], against her will, by use or threatened use of immediate force, violence and fear of injury to such person, and in the commission of and immediate flight therefrom the Defendants were armed with deadly weapons, to-wit: guns, and inflicted bodily injury upon [the victim].

In his statement on plea of guilty, Fletcher stated that:

On February 21, 1979, Ivan Dishon, and I kidnapped 2 women in Mason County. We did this in order to steal their car . . . During this time, I shot [the victim] with a .22 rifle. During the kidnapping and theft of the car, Ivan Dishon used a .22 pistol in my prescence [sic] and with my knowledge.

On June 14, 1979, the court sentenced Fletcher, imposing maximum sentences of life imprisonment on each count, with minimum sentences to be set by the Board of Prison Terms and Paroles (Board). The court also made special findings that Fletcher was armed with a firearm as defined by former RCW 9.41.025 and a deadly weapon, as defined by RCW 9.95.040, in the kidnapping count and with a deadly weapon, as defined by RCW 9.95.040, in the other two counts. The Board set Fletcher's minimum terms at 33 years for each count, to run consecutively, with a 5-year mandatory minimum pursuant to RCW 9.95.040 on each count.

Fletcher subsequently filed a personal restraint petition, raising double jeopardy and merger claims, and asking that his sentence be reviewed under the sentencing reform act. On June 2, 1987, the Court of Appeals entered an order dismissing Fletcher's petition. The Indeterminate Sentence Review Board subsequently reconsidered Fletcher's sentences. The Board reduced his sentences, but determined that they should continue to run consecutively. Fletcher then filed a petition for review with this court, arguing that [46]*46the imposition of consecutive sentences violated double jeopardy and merger principles.

After we accepted review, the Board again reconsidered Fletcher's sentences, this time setting the minimum terms to run concurrently. Because of the Board's action, Fletcher moved to dismiss this appeal as moot.

However, despite the Board's decision, Fletcher's maximum terms continue to be consecutive. It appears that these sentences might deleteriously affect Fletcher's offender score treatment under former RCW 9.94A.360 if he should subsequently be convicted of another crime. As Fletcher now acknowledges, the issues raised by his petition are not moot.

11(A)

Fletcher asserts that the imposition of consecutive sentences for his kidnapping, robbery, and assault convictions constitutes multiple punishments for the same offense in violation of the guaranties set forth in the double jeopardy clause of the United States Constitution. The double jeopardy clause provides that no person shall "be twice put in jeopardy of life or limb" for the same offense. The double jeopardy clause is applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 787, 23 L. Ed. 2d 707, 89 S. Ct. 2056 (1969).

Over a century ago, the United States Supreme Court recognized that the double jeopardy clause protects against the imposition of multiple punishments for the same offense. See Ex parte Lange, 85 U.S. (18 Wall.) 163, 168, 21 L. Ed. 872 (1873). However, Brown v. Ohio, 432 U.S. 161, 165, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1976) stated that:

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Bluebook (online)
776 P.2d 114, 113 Wash. 2d 42, 1989 Wash. LEXIS 88, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-personal-restraint-of-fletcher-wash-1989.