STAT'£ Or WAiHi.
20IUPR2I fcM 9=06
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, NO. 69849-4-
Respondent, DIVISION ONE
v.
JOHN WAYNE FOLDS, UNPUBLISHED OPINION
Appellant. FILED: April 21, 2014
Lau, J. — Under RCW 9.95.011, a sentencing court committing an offender to
prison for a crime committed before July 1, 1984, must fix a minimum term and must
"attempt to set the minimum term reasonably consistent with the purposes, standards,
and sentencing ranges under chapter 9.94A RCW of the sentencing reform act. ..."
John Folds contends the sentencing court erred as a matter of law by considering the
standard range listed in the current version of the Sentence Reform Act of 1981 (SRA),
chapter 9.94A RCW, to fix the minimum term on his conviction of first degree
manslaughter committed on February 15,1983. Because Folds fails to demonstrate
error, we affirm.
FACTS
In November 2012, John Folds pleaded guilty to first degree manslaughter and
attempted first degree theft based on incidents that occurred in February 1983. At 69849-4-1/2
sentencing, the parties agreed that the trial court should set the required maximum
sentence of 10 years for the manslaughter and 5 years for the attempted theft. Under
RCW 9.95.011, the trial court was to then "attempt to set the minimum term reasonably
consistent with the purposes, standards, and sentencing ranges" of the SRA, which
became effective on July 1, 1984. RCW 9.94A.905. The State asked the court to fix
the minimum term at 120 months, equal to the maximum term. Folds requested a
minimum term of 36 months, referencing the 36- to 48-month standard range which
would have been applicable if the offense had been committed after July 1, 1984, under
the first version of the SRA. Defense counsel argued:
The Court has enormous discretion in this case, and the Court can look to the SRA, as the State pointed out in its brief, and it can choose to impose a range that is consistent with today's punishment. The Court could also look at the SRA back in 1984 and 1987 and impose a sentence that is consistent with what the legislature deemed would have been appropriate punishment back then. A defendant should not be sentenced to a range that is in effect at the sentencing date. That just doesn't seem fair, Your Honor. If this Court were put in a position to sentence someone who actually committed a crime in 1987, and was in front of them to be sentenced, the Court would have to impose that range back in 1987. So this is completely consistent, it's fair, and it's just.
Verbatim Report of Proceedings (Jan. 25, 2013) (VRP) at 46.
The court then asked defense counsel whether the Supreme Court's decision in
In re Pers. Restraint of Stanphill, 134 Wn.2d 165, 171-72, 949 P.2d 365 (1998), allows
consideration of current SRA standard ranges when fixing a minimum term for an
offense committed before July 1, 1984 under RCW 9.95.011. Defense counsel
responded that the Stanphill decision
doesn't say that the Court must follow that range; it doesn't say that the Court even should follow that range. The holding ... is that the Court can choose to follow that range if it wishes.
-2- 69849-4-1/3
And I'm in complete agreement with that, Your Honor. But I don't believe there's any case law that says the Court must or should consider current sentencing ranges as opposed to sentencing ranges that were enacted at the time or became law shortly after that. So the Court has discretion. And for all the arguments that we're making, obviously we're asking the Court to consider the ranges based nearer in time to the incident....
VRP at 48.
Following argument, the court referenced RCW 9.95.011 and reviewed and
discussed the items listed in RCW 9.94A.010 describing the purpose of the SRA. With
regard to its attempt to fix a minimum term reasonably consistent with the purposes,
standards, and sentencing ranges of the SRA, the court stated:
[B]oth parties acknowledge that the Court has discretion there. It does appear the Court could, but is not required to accept the Defense analysis that the Court should look to the standard range sentences applicable close in time to the charged offense here. However, [Stanphilll does make clear that it is not error either for the Court to relate its decision to current standard range sentences in both cases as long as the sentence imposed by the Court does not exceed the statutory maximum.
Accordingly, consistent with the purposes of the SRA, the Court believes that it is appropriate in this case for the Court to refer to the sentencing ranges as they exist today, and the Court will decline to accept the argument of Defense that the Court should go back in time to a lower sentencing range.
VRP at 64-65, 68-69.
The trial court imposed the maximum term of 10 years on the manslaughter and
5 years on the attempted theft, and it fixed minimum terms of 114 months on the
manslaughter and 4.5 months on the attempted theft. The court ordered the terms to
run concurrently.
Folds appeals. 69849-4-1/4
ANALYSIS
Despite repeatedly acknowledging the trial court's discretion under RCW
9.95.011 at the sentencing hearing, Folds now claims that the court erred as a matter of
law by considering the 2013 SRA sentencing range when fixing his minimum term.
RCW 9.95.011(1) provides in pertinent part:
When the court commits a convicted person to the department of corrections on or after July 1, 1986, for an offense committed before July 1, 1984, the court shall, at the time of sentencing or revocation of probation, fix the minimum term. The term so fixed shall not exceed the maximum sentence provided by law for the offense of which the person is convicted. The court shall attempt to set the minimum term reasonably consistent with the purposes, standards, and sentencing ranges under chapter 9.94A RCW of the sentencing reform act.... The court's minimum term decision is subject to review to the same extent as a minimum term decision by the parole board before July 1, 1986.
Before July 1, 1986, review of a parole board decision setting a minimum term
"was obtained by filing a personal restraint petition." In re Pers. Restraint of Rolston, 46
Wn. App. 622, 623, 732 P.2d 166 (1987); RCW 9.95.040. A petitioner challenging such
a decision could obtain relief, in the form of remand for a new hearing, "upon showing
the Board set a minimum term in violation of a statute or regulation." In re Pers.
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STAT'£ Or WAiHi.
20IUPR2I fcM 9=06
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, NO. 69849-4-
Respondent, DIVISION ONE
v.
JOHN WAYNE FOLDS, UNPUBLISHED OPINION
Appellant. FILED: April 21, 2014
Lau, J. — Under RCW 9.95.011, a sentencing court committing an offender to
prison for a crime committed before July 1, 1984, must fix a minimum term and must
"attempt to set the minimum term reasonably consistent with the purposes, standards,
and sentencing ranges under chapter 9.94A RCW of the sentencing reform act. ..."
John Folds contends the sentencing court erred as a matter of law by considering the
standard range listed in the current version of the Sentence Reform Act of 1981 (SRA),
chapter 9.94A RCW, to fix the minimum term on his conviction of first degree
manslaughter committed on February 15,1983. Because Folds fails to demonstrate
error, we affirm.
FACTS
In November 2012, John Folds pleaded guilty to first degree manslaughter and
attempted first degree theft based on incidents that occurred in February 1983. At 69849-4-1/2
sentencing, the parties agreed that the trial court should set the required maximum
sentence of 10 years for the manslaughter and 5 years for the attempted theft. Under
RCW 9.95.011, the trial court was to then "attempt to set the minimum term reasonably
consistent with the purposes, standards, and sentencing ranges" of the SRA, which
became effective on July 1, 1984. RCW 9.94A.905. The State asked the court to fix
the minimum term at 120 months, equal to the maximum term. Folds requested a
minimum term of 36 months, referencing the 36- to 48-month standard range which
would have been applicable if the offense had been committed after July 1, 1984, under
the first version of the SRA. Defense counsel argued:
The Court has enormous discretion in this case, and the Court can look to the SRA, as the State pointed out in its brief, and it can choose to impose a range that is consistent with today's punishment. The Court could also look at the SRA back in 1984 and 1987 and impose a sentence that is consistent with what the legislature deemed would have been appropriate punishment back then. A defendant should not be sentenced to a range that is in effect at the sentencing date. That just doesn't seem fair, Your Honor. If this Court were put in a position to sentence someone who actually committed a crime in 1987, and was in front of them to be sentenced, the Court would have to impose that range back in 1987. So this is completely consistent, it's fair, and it's just.
Verbatim Report of Proceedings (Jan. 25, 2013) (VRP) at 46.
The court then asked defense counsel whether the Supreme Court's decision in
In re Pers. Restraint of Stanphill, 134 Wn.2d 165, 171-72, 949 P.2d 365 (1998), allows
consideration of current SRA standard ranges when fixing a minimum term for an
offense committed before July 1, 1984 under RCW 9.95.011. Defense counsel
responded that the Stanphill decision
doesn't say that the Court must follow that range; it doesn't say that the Court even should follow that range. The holding ... is that the Court can choose to follow that range if it wishes.
-2- 69849-4-1/3
And I'm in complete agreement with that, Your Honor. But I don't believe there's any case law that says the Court must or should consider current sentencing ranges as opposed to sentencing ranges that were enacted at the time or became law shortly after that. So the Court has discretion. And for all the arguments that we're making, obviously we're asking the Court to consider the ranges based nearer in time to the incident....
VRP at 48.
Following argument, the court referenced RCW 9.95.011 and reviewed and
discussed the items listed in RCW 9.94A.010 describing the purpose of the SRA. With
regard to its attempt to fix a minimum term reasonably consistent with the purposes,
standards, and sentencing ranges of the SRA, the court stated:
[B]oth parties acknowledge that the Court has discretion there. It does appear the Court could, but is not required to accept the Defense analysis that the Court should look to the standard range sentences applicable close in time to the charged offense here. However, [Stanphilll does make clear that it is not error either for the Court to relate its decision to current standard range sentences in both cases as long as the sentence imposed by the Court does not exceed the statutory maximum.
Accordingly, consistent with the purposes of the SRA, the Court believes that it is appropriate in this case for the Court to refer to the sentencing ranges as they exist today, and the Court will decline to accept the argument of Defense that the Court should go back in time to a lower sentencing range.
VRP at 64-65, 68-69.
The trial court imposed the maximum term of 10 years on the manslaughter and
5 years on the attempted theft, and it fixed minimum terms of 114 months on the
manslaughter and 4.5 months on the attempted theft. The court ordered the terms to
run concurrently.
Folds appeals. 69849-4-1/4
ANALYSIS
Despite repeatedly acknowledging the trial court's discretion under RCW
9.95.011 at the sentencing hearing, Folds now claims that the court erred as a matter of
law by considering the 2013 SRA sentencing range when fixing his minimum term.
RCW 9.95.011(1) provides in pertinent part:
When the court commits a convicted person to the department of corrections on or after July 1, 1986, for an offense committed before July 1, 1984, the court shall, at the time of sentencing or revocation of probation, fix the minimum term. The term so fixed shall not exceed the maximum sentence provided by law for the offense of which the person is convicted. The court shall attempt to set the minimum term reasonably consistent with the purposes, standards, and sentencing ranges under chapter 9.94A RCW of the sentencing reform act.... The court's minimum term decision is subject to review to the same extent as a minimum term decision by the parole board before July 1, 1986.
Before July 1, 1986, review of a parole board decision setting a minimum term
"was obtained by filing a personal restraint petition." In re Pers. Restraint of Rolston, 46
Wn. App. 622, 623, 732 P.2d 166 (1987); RCW 9.95.040. A petitioner challenging such
a decision could obtain relief, in the form of remand for a new hearing, "upon showing
the Board set a minimum term in violation of a statute or regulation." In re Pers.
Restraint of Cashaw, 123 Wn.2d 138, 140, 866 P.2d 8 (1994). Accordingly, under RCW
9.95.011, to obtain remand to the trial court to fix a new minimum term, Folds must
establish that the court set his minimum term in violation of a statute or regulation.
Essentially, Folds argues that RCW 9.95.011 requires the trial court setting the
minimum sentence for a pre-SRA offense to consider the sentencing range closest in
time to the offense. In this case, as the State acknowledges, there is a significant
difference between the prior and current standard ranges because the legislature
increased first degree manslaughter from a class B felony to a class A felony in 1997.
-4- 69849-4-1/5
See Laws of 1997, ch. 365, §§ 4-5. But Folds fails to identify any authority requiring a
trial court setting a minimum term under RCW 9.95.011 to consider any particular
standard range other than the one currently in effect at the time of sentencing. And
nothing in the language of RCW 9.95.011 directing courts to "attempt" to set minimum
terms "reasonably consistent" with the SRA supports his claim of error as a matter of
law.
Folds's reliance on statutes and cases requiring reference to laws in effect at the
time the crime is committed is unavailing because the crime occurred before the
effective date of the SRA and would not have been subject to any SRA standard range
absent the requirements of RCW 9.95.011. And Folds's claim that the trial court's
consideration of the current standard range here was "contradictory" and "fundamentally
unfair" does not establish error as a matter of law.
The Supreme Court rejected certain constitutional challenges to the use of the
current version of the SRA for the purposes of setting minimum terms for pre-SRA
offenders in Stanphill. In 1995, the Indeterminate Sentence Review Board (Board), the
successor to the parole board, considered the 1993 SRA sentencing grid and manual to
set a minimum term for a rape committed in 1975. Stanphill, 134 Wn.2d at 168. In
1975, "the sentencing court was required to impose an indeterminate maximum
sentence of life," and "the Board possessed the ability to set a minimum term of any
length, provided it did not exceed the maximum sentence." Stanphill, 134 Wn.2d at
171. "When the Board set Stanphill's minimum sentence in 1994, the Board retained
the discretion to impose a minimum term of up to life, provided it did so after
consideration of the standards, purposes, and ranges of the SRA." Stanphill, 134
-5- 69849-4-1/6
Wn.2d at 171. Rejecting Stanphill's ex post facto challenge, the Supreme Court noted
that the Board imposed a minimum term "within the bounds of a permissible 1975
sentence." Stanphill, 134 Wn.2d at 173. The court also rejected Stanphill's equal
protection challenge, observing that the "use of the current SRA is a deliberate and
rational attempt to converge two distinct sentencing schemes, to transition from
determinate to indeterminate sentencing, and to set consistent sentences for similar
offenders," particularly in view of changes in sentencing ranges and changes in the
legislature's view of criminal punishment over time. Stanphill, 134 Wn.2d at 175-76.
Here, as in Stanphill, the trial court appropriately exercised its broad discretion
under RCW 9.95.011 and set a minimum term reasonably consistent with the SRA.
Folds fails to demonstrate grounds for relief.
Folds has filed a brief statement of additional grounds for relief. In his first
ground, Folds refers to his version of the events of February 1983 and expresses
sorrow and grief but does not request any relief. In his second ground, Folds claims he
has not received any jail good time credit and asks this court to "look at" his good time
credit. But because this allegation rests on matters that are outside the record, it cannot
be considered on direct appeal. State v. McFarland, 127 Wn.2d 322, 337-38, 899 P.2d
1251 (1995).
Affirmed.
WE CONCUR:
-^T~V