94 Wn.2d 116, STATE v. BISHOP

CITE:          94 Wn.2d 116, 614 P.2d 655

               STATE v. BISHOP

CAUSE NUMBER: 46733

FILE DATE:     July 31, 1980

CASE TITLE: The State of Washington, Respondent, v. Wally
               Glen Bishop, Petitioner.

[1] Criminal Law - Punishment - Possession of Firearm - Sentence - Maximum Term. In accordance with RCW 9.95.010, which requires a trial court to sentence a convicted felon to the maximum term provided by law, a defendant convicted of unlawfully possessing a firearm under RCW 9.41.040 must be sentenced to a maximum term of 10 years.

[2] Statutes - Construction - Legislative Intent - Alternative Interpretations. A statute which is subject to more than one interpretation will be given that interpretation which best advances the overall legislative purpose.

[3] Criminal Law - Punishment - Sentence - Indeterminate Sentence - Policy. The policy behind RCW 9.95.010, which allows a trial court to fix only the maximum term of a felon's sentence as provided by law, is that the felon's actual time in prison is best determined by the Board of Prison Terms and Paroles.

NATURE OF ACTION: Prosecution for possession of a pistol by a person formerly convicted of a crime of violence.

Superior Court: The Superior Court for King County, No. 83618, Norman B. Ackley, J., on April 7, 1978, entered a judgment of guilty and sentenced the defendant to a maximum term of 10 years.

Court of Appeals: The court AFFIRMED the conviction and sentence at 24 Wn. App. 414, holding that the trial court had no discretion to impose a sentence with a maximum term of less than 10 years.

Supreme Court: Holding that a 10-year maximum sentence was required by RCW 9.41.040 and 9.95.010, the court AFFIRMS the decision of the Court of Appeals.

COUNSEL:      ALAN CORNER, for petitioner.

NORM MALENG, PROSECUTING ATTORNEY, MICHAEL T. DI JULIO, ASSISTANT CHIEF DEPUTY, and J. ROBIN HUNT, DEPUTY, for respondent.

AUTHOR OF MAJORITY OPINION: Brachtenbach, J. -

MAJORITY OPINION: Defendant pleaded guilty to a charge of unlawful possession of a firearm, a felony under RCW 9.41.040. 1


1 RCW 9.41.040 states:

      "No person who has been convicted in this state or elsewhere of a crime of violence, shall own a pistol or have one in his possession or under his control. Such person upon being convicted of a violation of this section shall be guilty of a felony and punished by imprisonment in the state penitentiary for not less than one year nor more than ten years."


At sentencing, he contended that the trial court had the discretion to set a sentence between 1 and 10 years pursuant to RCW 9.41.040.

After a lengthy sentencing hearing, the trial court concluded that it had no discretion and sentenced defendant to a maximum of 10 years. Defendant appealed to the Court of Appeals. It affirmed. STATE v. BISHOP, 24 Wn. App. 414, 601 P.2d 962 (1979). We affirm.

We adopt the analysis and opinion of the Court of Appeals.

[1] We add for emphasis that RCW 9.95.010 explicitly applies and specifically provides that "[t]he maximum term to be fixed by the court shall be the maximum provided by law for the crime of which such person was convicted, if the law provides for a maximum term." Here the applicable statute does provide for a maximum term.

Additionally in SIIPOLA v. CRANOR, 38 Wn.2d 848, 232 P.2d 920 (1951), relied upon by the Court of Appeals, it was made clear that when a statute provides a penalty of "not more than 15 years," the court MUST sentence to that maximum. If defendant's analysis were correct, that statute should have been interpreted as granting authority to sentence up to 15 years. It was not so interpreted.

It is significant that after SIIPOLA, the legislature amended the statute under which defendant was convicted by adding the second sentence providing for a term of not less than 1 year nor more than 10 years. Laws of 1961, ch. 124, 3. While the not less than 1 year provision creates some ambiguity, in the face of the plain language of RCW 9.95.010 and our prior holding in SIIPOLA, we can only conclude that the legislature intended that a defendant under RCW 9.41.040 must be sentenced to the maximum provided by that statute.

[2, 3] Even if alternative interpretations were possible, we should adopt that one which best advances the overall legislative purpose. ANDERSON v. MORRIS, 87 Wn.2d 706, 716, 558 P.2d 155 (1976). As noted by the Court of Appeals, the policy of the legislature is that actual time of imprisonment is best determined by the Board of Prison Terms and Paroles. It is unlikely that the language of RCW 9.41.040 was intended to effect a single instance of a drastic change in the overall sentencing scheme by such indirect language, particularly in view of SIIPOLA v. CRANOR, SUPRA.

The trial court and the Court of Appeals are affirmed.

CONCURRING JUDGES: Utter, C.J., and Rosellini, Stafford, Wright, Horowitz, Dolliver, Hicks, and Williams, JJ., concur.

POST-OPINION INFORMATION: