# State v. Frampton > Washington Supreme Court · April 16, 1981 · 95 Wash. 2d 469 URL: https://www.frixlaw.com/law-library/cases/9528147 ## Case - **Full name:** The State of Washington, Respondent, v. Morris John Frampton, Appellant; The State of Washington, Respondent, v. Floyd William Marr, Et Al, Appellants; The State of Washington, Respondent, v. Nedley G. Norman, Jr., Appellant; The State of Washington, Respondent, v. Howard Eugene Foren, Appellant; The State of Washington, Respondent, v. Michael G. Robtoy, Appellant; The State of Washington, Appellant, v. Timothy Robert Pauley, Defendant, Scott Carl Smith, Respondent; The State of Washington, Appellant, v. Robert DeAngelis, Respondent - **Court:** Washington Supreme Court - **Decided:** April 16, 1981 - **Citations:** 95 Wash. 2d 469; 627 P.2d 922; 1981 Wash. LEXIS 994 - **Precedential status:** Published - **Opinion:** Concurrence by Dimmick - **Judges:** Dolliver, Williams, Stafford, Utter, Dimmick, Rosellini - **Cited by:** 74 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9528147 ## How later opinions describe it (automated extraction) - stating that, as of 1981, only four jurisdictions in the English-speaking world employed hanging: Washington, Montana, Delaware, and South Africa - concluding that the request for a new procedure should be directed to the legislature ## Opinion text Dimmick, J. (concurring in part, dissenting in part) — I concur with the reasoning and result reached in the dissents of Justices Rosellini and Dore as to issue I, and would likewise overrule State v. Martin, 94 Wn.2d 1 , 614 P.2d 164 (1980). However, since Martin is stare decisis, and since the majority has held the death penalty unconstitutional, I address myself to issue II. The majority holds that "the State may not constitutionally seek life imprisonment without possibility of release or parole for those who are found guilty of aggravated first degree murder." I disagree with that holding. RCW 9A.32.047 provides that if this court holds the death penalty unconstitutional, "the penalty under RCW 9A.32.046 shall be imprisonment in the state penitentiary for life without possibility of release or parole." The sever-ability provision, RCW 10.94.900, indicates this directive can stand alone although other parts of the statute are held invalid. Given the unambiguous manifestation of legislative intent present here, we must heed this directive unless it is constitutionally infirm. Is the present statutory scheme unconstitutional? I do not believe it is. The dispositive United States Supreme Court cases, United States v. Jackson, 390 U.S. 570 , 20 L. Ed. 2d 138 , 88 S. Ct. 1209 (1968), and Corbitt v. New Jersey, 439 U.S. 212 , 58 L. Ed. 2d 466 , 99 S. Ct. 492 (1978), *529 only prohibit a state from impermissibly inducing a defendant to plead guilty and to forego his right to a jury trial. To assess the constitutionality of the inducement present in this case we must determine whether a defendant who pleads guilty and is given a life sentence which carries a possibility of parole is treated sufficiently different from a defendant who goes to trial before a jury and is sentenced to life imprisonment without a possibility of parole. Unlike the majority, I believe these two penalties are substantially similar, and the present statutory scheme, therefore, does not impermissibly encourage a defendant to plead guilty. This court has clearly recognized that parole is granted strictly by grace through the Board of Prison Terms and Paroles. The discretion to grant or withhold this grace is virtually unfettered and unreviewable. See State v. Fain, 94 Wn.2d 387, 394-95, 617 P.2d 720 (1980); In re George, 90 Wn.2d 90, 94 , 579 P.2d 354 (1978). Accordingly, a defendant who pleads guilty and receives a life sentence with a possibility of parole must expect he will serve a life sentence. He will, in fact, serve the identical sentence as a defendant who exercised his right to trial by jury and was sentenced to life without possibility of parole; unless the State deigns to exercise its discretion and mollify his life sentence. Furthermore, a defendant who goes to trial and is sentenced to life without a possibility of parole is not "without hope," as the majority states. See majority opinion, at 484. The Governor may commute an inmate's sentence at any time free from legislative or judicial restraint. For example, the sentences of at least 12 convicted murderers were commuted in the last 4 years. 3 *530 The two penalties, while obviously not identical, are substantially similar. That is all the constitution requires. Here, as in Corbitt , a defendant who pleads guilty and is sentenced to life with a possibility of parole is not substantially better oif than a defendant who goes to trial and is sentenced to life without a possibility of parole. Under our statutory scheme, as under New Jersey's in Corbitt , a defendant who freely abandons his right to trial by jury may receive the same penalty as the defendant who makes the State prove his guilt at trial. Given this similarity of penalties, Jackson's narrow prohibition against needless encouragement of guilty pleas, 390 U.S. 583 , is clearly absent in this case. I accordingly dissent from issue II of the majority opinion. I concur with the majority on issues III and IV. Hicks, J., concurs with Dimmick, J. Brachtenbach, C.J., concurs with Dimmick, J., as to issue II. Rosellini, J. — In my dissent I have upheld the death penalty statute in its entirety, which would provide for the penalty of life imprisonment without possibility of parole. In order to avoid any misunderstanding, I am also signing Justice Dimmick's opinion. Reconsideration denied May 20, 1981. The following former inmates, who were all sentenced to life for first degree murder, had their sentences commuted during the term of office of Governor Ray upon recommendation of the superintendent of the Washington State Penitentiary: (1) Michael Finnegan, sentenced 11/6/70, commuted 1/12/81; (2) Edmond Gray, sentenced 4/22/60 to three consecutive life sentences, commuted 1/12/81; (3) Kelly D. Messinger, sentenced 12/20/71, commuted 1/8/81; (4) Harry L. Van DeVenter, sentenced 2/28/69, commuted 1/8/81; (5) John E. Henault, sentenced *530 5/26/64, commuted 1/5/81; (6) Donald Mesaros, sentenced 4/6/62, commuted 10/22/80; (7) Richard A. Lee, sentenced 6/7/74, commuted 10/22/80; (8) Robert Lee Reed, sentenced 2/20/74, commuted 10/22/80; (9) Katherine L. Huff, sentenced 11/3/67, commuted 5/16/78; (10) Ronnie J. Nichols, sentenced 3/18/66, commuted 5/16/78; (11) Robert Huson, sentenced 5/26/67, commuted 3/1/78; (12) Anthony Takahashi, sentenced 3/31/67, commuted 3/30/77. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9528147. Public record. Not legal advice.