State v. McDougal

812 P.2d 877, 61 Wash. App. 847
CourtCourt of Appeals of Washington
DecidedJuly 11, 1991
DocketNo. 10705-1-III
StatusPublished
Cited by5 cases

This text of 812 P.2d 877 (State v. McDougal) 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
State v. McDougal, 812 P.2d 877, 61 Wash. App. 847 (Wash. Ct. App. 1991).

Opinion

Shields, J.

Samuel Joseph McDougal appeals a superior court order sentencing him to 450 days' confinement in the State Department of Corrections for 10 violations of conditions or requirements of an earlier sentence imposed upon him. We vacate the order and remand for resenten-cing.

On December 3, 1987, Mr. McDougal pleaded guilty to a single charge of possession of a controlled substance, cocaine. Under the provisions of the Sentencing Reform Act of 1981 (SRA), his offender score was 0 and the standard range for his offense was 0 to 90 days. He was sentenced to 30 days' confinement in jail and 1 year of community supervision. The first-time offender waiver was not employed.

In April 1988, Mr. McDougal's correction officer submitted a notice of violation of conditions of supervision, charging Mr. McDougal had failed to report for required urinalysis testing since December 29, 1987, and lied about his noncompliance. At a hearing held November 17, 1988, the court found Mr. McDougal willfully violated the requirements or conditions of his sentence. Pursuant to RCW 9.94A.200, the court modified Mr. McDougal's sentence. He was sentenced to 8 additional days in jail; 8 months of community supervision were tolled and added to his term of supervision.

In August 1989, Mr. McDougal was again reported for violating conditions of supervision. This time, however, he was charged with 10 individual violations occurring between [850]*850March 31 and July 14, 1989: 3 for using marijuana and 2 for using Darvon (all detected by urinalysis), 3 for failing to report for urinalysis, 1 for moving from his listed residence to an unknown residence, and 1 for failing to report to his supervising corrections officer. Two additional violations were charged in December: leaving the state without written permission and being arrested in Montana for possession of drug paraphernalia.

At a hearing held February 22, 1990, on all 12 violations charged, Mr. McDougal denied he used marijuana or moved to an unknown address, denied his arrest for possession of paraphernalia violated any condition of his supervision and admitted the remaining 7 violations. The court found him guilty of 10 willful violations of the requirements or conditions of his sentence.1 The State recommended the court impose the maximum penalty of 60 days for each violation. Mr. McDougal objected, arguing the State unfairly collected violations over a period of months and a sentence of 600 days' confinement in prison was grossly disproportionate to the standard range of 0 to 90 days for the underlying felony. The court sentenced Mr. McDougal to 450 days in the State Department of Corrections, 45 days for each of the 10 violations.

Mr. McDougal contends the court erred by imposing a 450-day prison sentence for violation of his previous sentence because the standard range for that conviction was 0 to 90 days' confinement in jail and Mr. McDougal was sentenced to 30 days plus 1 year of community supervision. Mr. McDougal makes three basic arguments: (1) literal application of RCW 9.94A.200(2)(b) does not comport with the purposes and structure of the SRA, therefore it must be ambiguous; (2) if the statute is not limited in its application, it violates constitutional due process guaranties; and (3) if the statute is unambiguous and constitutional, the [851]*851court's application of it in this case was an abuse of discretion. Because we decide the appeal on the first issue, we do not address the others.

RCW 9.94A.200 provides, in pertinent part:

(1) If an offender violates any condition or requirement of a sentence, the court may modify its order of judgment and sentence and impose further punishment in accordance with this section.
(2) If an offender fails to comply with any of the requirements or conditions of a sentence the following provisions apply:
(b) The state has the burden of showing noncompliance by a preponderance of the evidence. If the court finds that the violation has occurred, it may order the offender to be confined for a period not to exceed sixty days for each violation . . .;

This statute addresses the sentencing court's power to enforce its own disposition orders. Additional confinement is expressly authorized. It is the interpretation of that authorization and its application to the facts presented here which is at issue.

The phrase "not to exceed sixty days for each violation" is capable of more than one meaning:

1. It can mean confinement for up to 60 days for each instance of noncompliance. This interpretation was accepted by the court when it sentenced Mr. McDougal to 45 days for each of 10 violations.

2. It can mean the offender may be punished in successive proceedings each time he violates a condition, even if it is the same condition each time. This interpretation eliminates the argument punishment for a violation of a condition stands in lieu of compliance, thus excusing the condition. See State v. Martin, 36 Wn. App. 1, 670 P.2d 1082 (1983), rev'd, and modified, 102 Wn.2d 300, 684 P.2d 1290 (1984). Thus, Mr. McDougal could be punished for failure to report for urinalysis even though he had been punished already for an earlier failure to report for urinalysis; the drug testing remained a requirement of his sentence.

[852]*8523. It can mean confinement for up to 60 days for all violations brought before the court in a single violation proceeding.2 Arguably, the same sentencing rules should apply to multiple violations of sentence conditions which are, after all, less serious than multiple felonies. A limit of 60 days for each violation proceeding also coincides with the lowest possible standard range for underlying offenses; it eliminates the argument that a penalty for noncompliance exceeds the underlying standard range. It also inhibits the compiling of numerous violations as appears to have occurred here.

4. Finally, it can mean confinement for up to 60 days for each specific condition or requirement violated, regardless of the number of times the specific condition is violated. This interpretation was accepted by the court at the first violation proceeding when Mr. McDougal's multiple failures to report to TASC (Treatment Alternatives to Street Crime) for urinalysis testing from December 29, 1987, to April 1988, were treated as a single noncompliance with the condition he report on a regular basis, although he failed to report for more than one scheduled test. We hold the meaning of RCW 9.94A.200 is ambiguous and requires interpretation.

In determining which meaning the Legislature intended, we must keep in mind the need to satisfy the underlying purpose of the statute while avoiding absurd results. State v. Stannard, 109 Wn.2d 29, 36, 742 P.2d 1244 (1987);

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Cite This Page — Counsel Stack

Bluebook (online)
812 P.2d 877, 61 Wash. App. 847, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcdougal-washctapp-1991.