STATE v. GJERTSON, 71 Wn.2d 757 (1967)

430 P.2d 972

THE STATE OF WASHINGTON, Respondent, v. CHARLES GJERTSON, Appellant. THE STATE OF WASHINGTON, Respondent, v. CHARLES GJERTSON, Defendant, MARVIN J. PICHE, Appellant.[*]

Nos. 39015, 39062.The Supreme Court of Washington. Department One.
August 10, 1967.

[1] Criminal Law — Punishment — Attempts — Statutory Provisions. RCW 9.01.070, which prescribes the punishment for attempts to commit crimes, applies only where there is no other provision of law under which a particular attempt is punishable. [2] Escape — Attempted Escape — Punishment. Under RCW 9.31.010 an attempt to escape from custody is a crime in itself; hence, RCW 9.01.070, which prescribes the punishment for certain attempts to commit a crime, is not applicable to a conviction of attempted escape. [2] See Am.Jur.2d, Escape, Prison Breaking and Rescue § 4.

Consolidated appeals from a judgment of the Superior Court for Grant County, No. 2863, B.J. McLean, J., entered June 3, 1966 Affirmed.

Prosecution for attempt to escape. Defendants appeal from the sentence imposed after a plea of guilty.

Baird White and Paul R. White, for appellant (appointed counsel for appeal).

W. Edward Allan, for appellant (appointed counsel for appeal).

Paul A. Klasen, Jr. and J.O. Neal, for respondent.

HILL, J.

Marvin J. Piche and Charles Gjertson were each being held in the Grant County jail on a felony charge. Together with one Rene Gonzales they were jointly charged with an attempt to escape therefrom. Piche and Gjertson each entered a plea of guilty to that charge, and each of them was sentenced to imprisonment for a term of not to exceed 10 years.

The statutory basis for this sentence was RCW 9.31.010 (Laws of 1955, ch. 320, § 2), which reads:

Every prisoner confined in a prison, or being in the lawful custody of an officer or other person, who escapes

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or attempts to escape from such prison or custody if he is held on a charge, conviction, or sentence of a felony, shall be guilty of a felony; if held on a charge, conviction, or sentence of a gross misdemeanor or misdemeanor, he shall be guilty of a misdemeanor.

It being charged (and conceded) that Piche and Gjertson were each in the Grant County jail on a felony charge when they made their attempt to escape, the trial court proceeded on the theory that each was guilty of a felony and imposed the appropriate penalty of 10 years. See RCW 9.92.010,[1] which sets 10 years as the maximum sentence for a person convicted of a felony for which no specially prescribed statutory punishment is provided.

Piche and Gjertson each appealed from the 10-year sentence, urging that since each was only charged with an attempt to escape, and since each conviction on a plea of guilty was only for an attempt to commit a felony, each sentence should be only one-half of what could have been imposed if a felony had been committed. Their reliance is placed on RCW 9.01.070,[2] which provides that an attempt to commit a crime (not punishable by death or life imprisonment) shall be punished by imprisonment for not more than half of the longest term prescribed for the conviction of the offense committed.

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While Piche and Gjertson each appealed separately, their appeals — presenting the same issue — were consolidated for hearing, and one opinion will dispose of both appeals.

The contention made is ingenious, but also ingenuous. The appellants were not convicted of an attempt to commit a felony; they were convicted of a felony, i.e., a violation of RCW 9.31.010 (heretofore quoted), which makes either an escape or an attempt to escape a felony in itself.

This is by no means the only situation in which the legislature has indicated that it regards the attempt to commit certain crimes to be as serious an offense as the commission of the crime itself.[3]
[1] Since the legislature has by statute made many “attempts” specific crimes, as indicated in footnote 3, the general “attempt” statute (RCW 9.01.070) applies only where there is no specific statutory provision making an “attempt” an included crime. The statute relied upon by the appellants is a general catch-all designed to be applicable to “attempts” to commit a crime “not otherwise prescribed by statute.” It is clear that such a statute applies only where there is no other provision of law under which an “attempt” is punishable.[4]
[2] We are here concerned with a specific “attempt” statute i.e., RCW 9.31.010, which makes no distinction between the person who escapes from prison or custody and

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the one who attempts to escape therefrom. The trial court imposed the proper penalty on each appellant — the one applicable to a violation of RCW 9.31.010 as fixed by RCW 9.92.010, i.e., 10 years.

We approve the sentences and affirm the judgments appealed from.

FINLEY, C.J., ROSELLINI and HALE, JJ., and BARNETT, J. Pro. Tem., concur.

September 21, 1967. Petition for rehearing denied.