In re the Personal Restraint of Vega

800 P.2d 849, 59 Wash. App. 673, 1990 Wash. App. LEXIS 425
CourtCourt of Appeals of Washington
DecidedDecember 3, 1990
DocketNo. 22622-3-I
StatusPublished
Cited by1 cases

This text of 800 P.2d 849 (In re the Personal Restraint of Vega) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington 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 Vega, 800 P.2d 849, 59 Wash. App. 673, 1990 Wash. App. LEXIS 425 (Wash. Ct. App. 1990).

Opinion

Winsor, J.

Luis Vega seeks relief from a minimum term imposed by the Indeterminate Sentence Review Board (Board). We vacate the term imposed and remand for redetermination.

While he was incarcerated on a conviction for first degree robbery, Vega and two fellow inmates assaulted a fourth inmate. The assault occurred on November 13, 1978. The matter was referred to the Snohomish County Prosecutor, who charged Vega with first degree assault. Vega ultimately pleaded guilty to second degree assault and the Board of Prison Terms and Paroles imposed a 7%-year minimum term.

The indeterminate sentencing system under which Vega was sentenced was replaced by the Sentencing Reform Act of 1981 (SRA).1 The Board then began redetermining minimum terms imposed under the former system in accord with the purposes, standards and ranges of the SRA. RCW 9.95.009(2); In re Irwin, 110 Wn.2d 175, 179, 751 P.2d 289 (1988); Addleman v. Board of Prison Terms & Paroles, 107 Wn.2d 503, 511, 730 P.2d 1327 (1986). Although the Board can set a minimum term outside SRA guidelines, it must give "adequate written reasons" supporting its decision to do so. RCW 9.95.009(2).

Vega's original 7 V2-year minimum term was redetermined on March 10, 1987. In its decision, the Board acknowledged that under SRA guidelines, the minimum term for Vega's assault was 13 to 17 months. Nevertheless, the Board imposed a 34-month minimum term, reasoning that Vega's offense

[675]*675is aggravated by the extent that the assault occurred within the institution while [Vega] was serving time for another felony act, that this type of behavior tends to seriously disrupt the orderly operation of the institution and warrants an exceptional sentence.

Real Facts Doctrine

Vega first contends that the Board's reason for imposing an exceptional minimum term is invalid because it relies on facts that establish the elements of the additional, uncharged crime of prison riot.2 Ordinarily, the SRA prohibits reliance on such facts pursuant to the real facts doctrine codified at RCW 9.94A.370(2). However, the real facts doctrine does not apply to post-SRA sentencings on pre-SRA convictions. State v. Shephard, 53 Wn. App. 194, 197-98, 766 P.2d 467 (1988); In re George, 52 Wn. App. 135, 139-47, 758 P.2d 13 (1988). This is because

[t]he pre- and post-SRA sentencing systems are fundamentally different. Under the SRA, only offenses charged and proven can be used to determine the term of incarceration. RCW 9.94A.370; State v. McAlpin, 108 Wn.2d 458, 466, 740 P.2d 824 (1987). Under pre-SRA practices, however, defendants often entered into plea agreements in which it was understood the sentencing authority would consider surrounding circumstances and uncharged acts in setting a term of incarceration.

George, 52 Wn. App. at 143; accord, Shephard, 53 Wn. App. at 197-98. Thus, applying the real facts doctrine to a pre-SRA defendant who pleaded to a reduced charge might result in an unfairly lenient sentence when contrasted with the sentence of a post-SRA defendant who committed identical acts. Cf. George, 52 Wn. App. at 145.

Pursuant to George and Shephard, we reject Vega's contention that the real facts doctrine invalidates his minimum term.

[676]*676Factual Support for Exceptional Minimum Term

Vega alternatively contends that no facts in the record support the Board's reason for imposing an exceptional minimum term: that an assault committed within a prison "tends to seriously disrupt the orderly operation of the institution". Under the rule that a reason not supported by the record cannot be grounds for an exceptional sentence, RCW 9.94A.210(4), Vega argues that his minimum term must be vacated. We agree.

The record originally filed in this court consists of charging and sentencing documents, the assault judgment, orders filed by this court, documents relating to the disciplinary proceeding resulting from Vega's assault, and the State's presentence report filed in conjunction with another judgment against Vega. After Vega's petition was accepted for review by a panel of this court, the State filed an affidavit by George Johnson, one of two Board members who participated in the redetermination of Vega's minimum term. Johnson's affidavit was prepared almost 2 years after the redetermination at issue.

Johnson's affidavit is the only record evidence that even arguably supports the Board's reason for giving Vega an exceptional minimum term. It states in relevant part:

[My] personal observations and experience lead me to conclude that life within prison can be an extremely volatile environment. . . . Tensions among inmates can run high and the possibility for violence is always present. ... It is not uncommon for inmate retaliation to occur after an inmate has been assaulted by another inmate.
In my mind, the violent nature of the assault . . . that Mr. Vega engaged in created a dangerous situation within the Reformatory. In my opinion, Mr. Vega's behavior is tantamount to playing with matches in a tinder box. The impact of Mr. Vega's assault within a prison is much more significant because such assault can lead to further violence within the institution and seriously disrupts the orderly operation of the institution.

Johnson's affidavit is not properly before this court. Review of the reasons supporting an exceptional sentence is limited to the record that was before the sentencing [677]*677authority, RCW 9.94A.210(4)-(5); cf. In re Whitesel, 111 Wn.2d 621, 631, 763 P.2d 199 (1988) (due process requires inmate to be advised of adverse information in his or her file before the redetermination). Johnson's affidavit does not meet this requirement and we therefore do not consider it.3

Even if we were to consider Johnson's affidavit, we would still find it insufficient to support Vega's exceptional minimum term. The affidavit speaks only to Johnson's reasoning; it tells us nothing about whether the other Board member who participated in the redetermination concurred with that reasoning.

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800 P.2d 849, 59 Wash. App. 673, 1990 Wash. App. LEXIS 425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-personal-restraint-of-vega-washctapp-1990.