State v. Wallace, 937 P.2d 200, 86 Wash.App. 546 (Wash.App.Div.1 05/27/1997)

1067726 [1] Washington Court of Appeals


[2] No. 37693-4-I


[3] 937 P.2d 200, 86 Wash.App. 546, 1997.wa


[4] May 27, 1997


[5] STATE OF WASHINGTON, RESPONDENT,
v.
ROBERT ALLEN WALLACE, APPELLANT.


[6] Appeal from Superior Court of King County. Docket No: 93-1-00573-0. Date filed: 10/24/95. Judge signing: Hon. Michael J. Fox.


[7] For Appellant: David L. Donnan, Washington Appellate Project, 1201 Ibm Bldg, 1200 5th Ave, Seattle, WA 98101. Washington Appellate Project, 1201 Ibm Building, 1200 Fifth Avenue, Seattle, WA 98101.


[8] For Respondent: Dana Cashman, King Cnty Pros Offc # w554, 516 3rd Ave, Seattle, WA 98104-0213.


[9] Authored by Ronald E. Cox. Concurring: Susan R. Agid, C. Kenneth Grosse.


[10] The opinion of the court was delivered by: Cox


[11] COX, J. -- While in custody and awaiting sentencing on convictions for delivery and possession with intent to deliver cocaine, Robert Wallace received two liver transplants. The second was successful. Due to his medical condition, Wallace's sentencing hearing was continued twice over a period of 19 months. Wallace sought either a mitigated exceptional sentence or confinement at the University of Washington Medical Center. He also sought confinement under Washington's home detention statute, claiming that denial of this alternative to him violated equal protection of the law. The trial court ultimately sentenced Wallace to concurrent 36-month sentences on both counts, the low end of the standard range, at the Washington State Reformatory in Monroe. Wallace appeals the sentence.


[12] We hold that the home detention statute does not violate the constitutional guaranty of equal protection of the law. Because we also reject Wallace's other challenges, we affirm.


[13] At the time of Wallace's first scheduled sentencing hearing in March 1994, he was on a list for a liver transplant. He had been diagnosed with end-stage liver failure and had successfully completed the six-month alcohol and drug abstinence period required before the operation. According to Dr. Carithers, Wallace's physician, Wallace would have to report to the University of Washington Medical Center (UWMC) within two hours of notification to receive a new liver. The operation would be followed by two to three weeks of hospitalization and three months of follow-up at UWMC's outpatient clinics. The doctor expected Wallace to stabilize three to six months after surgery. Following stabilization, Wallace would require medication two to three times daily and would also need to see his physician every two weeks.


[14] Dr. Carithers expressed concern that Wallace not facethe same situation a previous liver transplant patient at Monroe had faced. According to the doctor, the other patient had received inadequate care. The clinical transplant coordinator at UWMC expressed similar concerns. She added that a previous liver transplant patient housed at Monroe suffered two episodes of rejection following mismanagement of his medications by prison authorities.


[15] The director of nursing services at the Washington State Reformatory indicated in a phone conversation with Wallace's counsel that Wallace would not have direct access to his UWMC physicians, but would need to go through four levels of approval to contact them. She stated that the prison hospital had no prior experience with liver transplant patients.


[16] Wallace sought to serve his sentence at UWMC. Alternatively, he sought a mitigated exceptional sentence. The trial court continued sentencing for one year. It concluded that incarceration at that time or during Wallace's immediate post-operative care was insupportable. Noting that patients usually stabilize after approximately six months, it delayed the proceedings to hear expert opinion regarding the stability of Wallace's health after the operation.


[17] In April 1995, the court once again heard the parties. Since March 1994, Wallace had undergone two liver transplants, the second of which was successful. He requested another continuance of the scheduled 1995 sentencing hearing so that he could collect the medical information necessary to present his case. The court granted this request.


[18] The third and final hearing was in October 1995. Wallace presented several letters from Dr. Carithers expressing essentially two concerns. First, the doctor noted that Wallace was taking medication to suppress his immune system to reduce the chances of organ rejection. The medications render exposure to infections life-threatening. Second, Dr. Carithers reemphasized past difficulties communicating with prison officials to ensure that patients received their prescribed medicines and that prison staff sent the required blood samples to UWMC for monitoring. The doctor again referred specifically to a liver transplant patient at Monroe as well as a federal prisoner who "developed life threatening complications because they were not given their immunosuppressive medications in a timely manner." He indicated that if Wallace's medicines are not administered as prescribed, his body will reject the liver within a few days. In addition, staff at UWMC must review Wallace's laboratory tests once a month. His liver and kidney functions must be closely monitored.


[19] Dr. Brent Saetrum, the Medical Director for Monroe, testified for the State. He testified that there are University of Washington physicians on the staff, including two who work with Dr. Carithers on a regular basis, and one who does follow-ups on kidney transplants. These doctors do not work at the prison full-time, but are there on a regular basis. Although Dr. Saetrum has no experience working with liver transplant patients, another physician has such experience.


[20] Since Dr. Saetrum joined the staff at Monroe, there have been no liver transplant patients. Moreover, the records do not show there ever have been any liver transplant patients at Monroe.


[21] Dr. Saetrum noted that Monroe follows the University of Washington's state-of-the-art guidelines in caring for its immunosuppressed patients. UW physicians come in to see the patients one to four times per month. If any patient becomes endangered as a result of immunosuppression, Monroe's staff consults with inside and outside specialists. If necessary, the patient can be stabilized at Providence or UWMC, then returned to Monroe and isolated there as necessary.


[22] Dr. Saetrum reviewed the materials from Dr. Carithers and addressed the latter's concern regarding the treatment Wallace might receive at Monroe. He indicated that communication between Monroe and UWMC is very direct. He testified that in the event of any deterioration in Wallace's condition, Monroe's staff would send him directly to UWMC "without hesitation."


[23] Dr. Saetrum further indicated that Dr. Carithers' concerns regarding Wallace's medications were unwarranted. Dr. Saetrum could arrange, under certain circumstances, for Wallace to keep all of his medications with him except for two drugs that are considered contraband. He stated that because Wallace would be monitored at Monroe, he would be more certain to take his medications than he would be at home.


[24] While Dr. Saetrum does not have authority to ensure that Wallace will be placed at Monroe, he could place Wallace in protective isolation once at Monroe. Inmates in the isolation facility wear protective gear if they have an infectious disease.


[25] The court decided that Wallace could reject the transplanted liver no matter where he is, even if his medical care is perfect. It could not conclude that the State is unable to provide appropriate medical care. The court therefore sentenced Wallace to 36 months, the low end of the standard range. Wallace appeals.


[26] Equal Protection of the Law


[27] Former RCW 9.94A.030(36), which was recodified in 1995 as RCW 9.94A.185, provides for a program of partial confinement that is available to certain offenders who are confined in a private residence. The statute states in pertinent part:


[28] Home detention may not be imposed for offenders convicted of a violent offense, any sex offense, any drug offense, reckless burning in the first or second degree as defined in RCW 9A.48.040 or 9A.48.050, assault in the third degree as defined in RCW 9A.36.031, assault of a child in the third degree, unlawful imprisonment as defined in RCW 9A.40.040, or harassment as defined in RCW 9A.46.020. Home detention may be imposed for offenders convicted of possession of a controlled substance (RCW 69.50.401(d)) or forged prescription for a controlled substance (RCW 69.50.403) if the offender fulfills the participation conditions set forth in this subsection and is monitored for drug use by treatment alternatives to street crime (TASC) or a comparable court or agency-referred program.


[29] The home detention program may also be made available to offenders whose charges and convictions do not otherwise disqualify them if medical or health-related conditions, concerns or treatment would be better addressed under the home detention program, or where the health and welfare of the offender, other inmates, or staff would be jeopardized by the offender's incarceration. *fn1 Participation in the home detention program for medical or health-related reasons is conditioned on the offender abiding by the rules of the home detention program and complying with court-ordered restitution. *fn2


[30] Wallace contends that the home detention statute denies him equal protection of the law. He claims the statutory classification, which generally excludes drug offenders but includes others who have committed "victimless" or single-victim crimes, is constitutionally flawed. We disagree.


[31] Because Wallace does not differentiate between the equal protection clauses of the state and federal constitutions, we apply the analysis applicable to the Fourteenth Amendment. *fn3 Our first task is to determine which of three levels of scrutiny apply: strict scrutiny, intermediate scrutiny, or rational basis review. *fn4


[32] Strict scrutiny applies to a statute that creates an inherently suspect classification. Inherently suspect classifications are those based on race, national origin, or alienage. *fn5 Strict scrutiny is also applied where a party is threatened with deprivation of a fundamental right.


[33] We apply intermediate scrutiny to a statute that creates a classification based on a semi-suspect class, where an important right is involved. *fn6 An example is where the right to liberty is implicated and the classification is based on poverty. *fn7


[34] Rational basis review applies where there are no factors triggering more intensive scrutiny. *fn8


[35] Wallace first argues that we should apply the strict scrutiny test to strike down the home detention statute because there is a fundamental right to life and a prison sentence would lead to his death. Alternatively, he claims that the statute is invalid if we apply the rational basis test.


[36] There is no inherently suspect classification (race, national origin, or alienage) in the home detention statute. Moreover, under the circumstances of this case, there is no threatened deprivation of the fundamental right to life. The trial court determined, and Wallace has not shown otherwise, that he is no more subject to loss of his life, due to his condition, in prison than elsewhere. Therefore, application of strict scrutiny is not warranted under the law.


[37] Wallace does not expressly argue that intermediate scrutiny should apply. In any event, that test is also inapplicable. Wallace's post-conviction interest in being confined at a particular facility is not a liberty interest and is severely limited. The U.S. Supreme Court has stated that every person has a fundamental right to liberty in the sense that the Government may not punish him unless and until it proves his guilt beyond a reasonable doubt at a criminal trial conducted in accordance with the relevant constitutional guarantees. But a person who has been so convicted is eligible for, and the court may impose, whatever punishment is authorized by statute for his offense, so long as that penalty is not cruel and unusual, and so long as the penalty is not based on an arbitrary distinction that would violate the Due Process Clause of the Fifth Amendment. *fn9


[38] In addition, the Washington Supreme Court has held that a statutory classification that implicates a physical liberty interest will be given only intermediate scrutiny if it also affects a semi-suspect class. *fn10 As there is no semi-suspect class identified by the home detention statute, intermediate scrutiny is not applicable. Rational basis review applies here.


[39] In Heller v. Doe, *fn11 the United States Supreme Court stated that under rational basis review "a classification "must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification."


[40] The State has no obligation to produce evidence to support the rationality of a classification. *fn12 A legislative choice may be based on rational speculation. *fn13 Where the classification in question is apparently the result of legislative line-drawing, these restraints on judicial review "have added force." *fn14 The legislature is not required to address all evils in the same field at once, but "may select one phase of one field and apply a remedy there, neglecting the others." *fn15


[41] The State argues that the distinction between drug dealers and criminals covered by the home detention statute is rationally related to the state's interest in protecting the public from the spread of drug use. It points to statistics indicating the extent of the drug problem. *fn16 It is possible that the Legislature feared the results of allowing any convicted felon, regardless of the seriousness or pervasiveness of her crime, to spend her sentence at home. The Legislature may not have excluded all serious and pervasive crimes from the statute, but equal protection does not require it to address all evils of the same class at once. *fn17 The State's rationale for the distinction between drug dealers and other offenders is integral to the purpose of the statute.


[42] Wallace contends that the purpose of the home detention statute is to save the state money and to protect the health of offenders and the prison population. He argues that there is no rational relationship between the exclusion of drug dealers and this purpose.


[43] The statute itself refutes this argument. It provides that participation in home detention is conditioned upon the prisoner's participation in employment, school, or parenting. In addition, prisoners whose health-related conditions would be better addressed at home may participate if their "charges and convictions do not otherwise disqualify them." Clearly, protecting prisoner health is not the sole or even the main purpose of the statute. Rather, it appears that the Legislature found that certain classes of prisoners would be better served in a home detention program. *fn18 It balanced the nature of the various crimes against the costs and benefits of imprisonment and decided that some crimes do not warrant the costs of imprisonment in certain cases.


[44] Taken to its limit, Wallace's argument would allow first degree murderers with health problems to qualify for home detention. Surely this was not the intent of the Legislature. *fn19


[45] Wallace also argues, without citation to authority, that to survive minimal scrutiny, a statutory classification must be related to the purpose of the statute itself. He maintains that the interest identified by the State is not the purpose of the statute. He contends that the court in State v. Clark, *fn20 which the State cites in response, erroneously applied the minimal scrutiny test by relying on the purpose of a statute different from the one under equal protection attack to determine the State's interest. We need not address arguments that are not supported by citation to authority. *fn21 In any event, we have already addressed why the classification is related to the purpose of the home detention statute.


[46] We hold that the home detention statute does not violate equal protection.


[47] We affirm the sentence.


[48] [The remainder of this opinion has no precedential value and will not be published.] *fn22


[49] Cruel and Unusual Punishment


[50] Wallace also argues that the trial court erred in finding that the Department of Corrections could adequately care for him. He characterizes his sentence as a "virtual death sentence" and argues that it is excessive in relation to his crime of delivering and possessing with intent to deliver cocaine. Further, he argues, the conditions in the prison would create a risk of death in violation of the Eighth Amendment to the federal Constitution. We disagree.


[51] Wallace challenges the trial court's finding that Monroe could adequately care for Wallace. We review the trial court's findings of fact to see if they are supported by substantial evidence. *fn23 Substantial evidence is evidence sufficient to "persuade a fair-minded, rational person of the truth of the declared premise." *fn24


[52] Wallace correctly points out that there is evidence in the record that casts doubt on the ability of the Monroe staff to provide him with adequate care. But it is the role of the trial court, not this court, to weigh conflicting evidence. Our function is limited to determining if there is substantial evidence to support the trial court's findings. *fn25


[53] We conclude that there is evidence in the record to convince a fair-minded, rational person that the Monroe staff will be able to provide adequate care to Wallace. At the hearing, the State's witness directly addressed concerns raised by Wallace. Dr. Saetrum indicated his intention to consult with Dr. Carithers regarding Wallace's treatment and to follow Dr. Carithers' recommendations even if he disagrees with them. He stated that because the Monroe staff will monitor the administration of Wallace's medications, Wallace is more likely to take them as prescribed than he would be at home. The hospital at Monroe has isolation facilities, in which Wallace could be kept if approved by Dr. Carithers.


[54] Because the record does not support Wallace's contention that his sentence is a "virtual death sentence," we need not address his argument that a death sentence is excessive punishment for his crime.


[55] Wallace also argues that his sentence is inconsistent with cases holding that prison conditions creating a risk of death are prohibited by the Eighth Amendment. In Helling v. McKinney, *fn26 the U.S. Supreme Court held that prison conditions that do not cause immediate physical harm but create a threat of future harm may be prohibited by the Eighth Amendment. Helling set forth a two-part test: (1) an objective prong, requiring the court to determine the seriousness of the potential harm to the prisoner and whether the risk suffered by the defendant is "so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk"; and (2) a subjective prong, requiring a showing that prison authorities acted with "deliberate indifference." *fn27 A prisoner must show that both prongs of this test are met in order to secure relief under the Eighth Amendment. *fn28


[56] The question of whether the Helling test is met is a mixed question of law and fact. *fn29 We review questions of law de novo. The appropriate standard of review for findings of fact under the Helling analysis is the clearly erroneous standard. *fn30 Under the clearly erroneous standard, reversal is required only if there is not substantial evidence to support the findings. *fn31


[57] Wallace fails to demonstrate that he falls within the first prong of the Helling test. The trial court concluded that Monroe could provide adequate care to Wallace. It therefore determined that the risk to Wallace relating to prison conditions was not serious. As we noted above, substantial evidence supports this Conclusion. Therefore, we cannot conclude that the risk to Wallace if confined at Monroe constitutes a risk "so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk." *fn32


[58] The record indicates that Dr. Saetrum does not have complete control over Wallace's placement within the prison system. Therefore, it is possible that Wallace could be placed in more dangerous conditions than those at Monroe. However, the mere possibility of future risk does not meet the objective test in Helling.


[59] Wallace argues correctly that in Helling and similar cases, the Supreme Court has indicated that relief is available under the Eighth Amendment for prisoners suffering from risks of future harms. *fn33 However, the Helling court suggested that on remand, the prisoner in that case might have difficulty meeting the objective test because he was no longer housed with a heavy smoker and because a new prison smoking policy might minimize the risk to the prisoner.


[60] With respect to the objective factor, McKinney must show that he himself is being exposed to unreasonably high levels of ETS [environmental tobacco smoke]. Plainly relevant to this determination is the fact that McKinney has been moved . . . and is no longer the cellmate of a five-pack-a-day smoker. While he is subject to being moved back to Carson City and to being placed again in a cell with a heavy smoker, the fact is that at present he is not so exposed. *fn34


[61] Wallace has failed to meet the first prong of the Helling test.


[62] Because Wallace has not met the first prong of Helling, we need not address the second prong. We conclude that the sentence imposed by the trial court does not violate the Eighth Amendment.


[63] Good Cause for Continuance


[64] A court must sentence a defendant within 40 court days of conviction, unless it determines that good cause exists to delay sentencing. *fn35 Wallace contends that there was no good cause for the sentencing delay because the evidence before the court at the March 1994 hearing showed that Wallace could not be safely incarcerated at any time after his liver transplant.


[65] The trial court has broad discretion to determine whether good cause exists for purposes of RCW 9.94A.110. *fn36 The court abuses this discretion if it bases the postponement on untenable grounds. *fn37 "So long as a lawful sentence is ultimately imposed, the SRA does not preclude a court from delaying sentencing for reasons peculiar to the offender." *fn38


[66] Wallace contends that the trial court abused its discretion by delaying the proceedings where the evidence showed that Monroe would no more likely be able to care for Wallace adequately after the delay than before it. During the proceedings before the court, defense counsel indicated that some of the dangers involved in incarcerating Wallace after the transplant would continue for the remainder of his life. Evidence was before the court of defense counsel's interview with Annette Belder, director of nursing for the Department of Corrections, in which Ms. Belder indicated that Wallace would not have direct telephone access to his UWMC physicians. However, as the State points out, there was a statement by a Department of Corrections representative indicating that the Department was not incapable of dealing with Wallace's medical problems.


[67] The court stated that if we defer it, we can assess what his medical condition is, get all of the advice from Dr. Carithers and others in a year or so as to what his situation is, and we can fashion a sentence that will be compatible with his medical needs.


[68] Given the dispute regarding Monroe's ability to properly care for Wallace after the transplant, the potential harm from sentencing Wallace to imprisonment at the time of the first hearing, and the fact that Wallace might not survive the year, we cannot say that the trial court abused its discretion by postponing sentencing.


[69] Speedy Sentencing Right


[70] Prior to the October 1995 sentencing hearing, Wallace requested that the court dismiss the case because his speedy sentencing right was violated by the continuance. We review the court's denial of such a motion for an abuse of discretion. *fn39


[71] Under the Washington Constitution and the Sixth Amendment to the United States Constitution, speedy sentencing rights are violated if a delay is "'purposeful or oppressive.'" *fn40 This court has adopted the four-part analysis set forth by the U.S. Supreme Court in Barker v. Wingo. *fn41 In deciding whether the right to speedy sentencing was violated, the court weighs the following factors: the length of the delay, reasons for the delay, the defendant's assertion of his right, and prejudice to the defendant. *fn42


[72] The delay of 19 months in this case was substantial. We must balance the length of the delay with the other factors. *fn43 We note that the delay from April 1995 to October 1995 resulted from a continuance Wallace requested. A self-imposed delay is by definition not purposeful and oppressive. Approximately one year of the delay was at the State's request. As we have noted above, the court granted the continuance so that it could assess information that would become available after Wallace's liver transplant. A one-year continuance was not unreasonable given Wallace's medical condition. The reasons for the delay were valid. Therefore, the delay was not purposeful or oppressive.


[73] Wallace argues that he was prejudiced by the delay because he suffered the stress of awaiting sentencing during a period of serious illness and surgery. He cites Sterling for the proposition that minimizing the anxiety surrounding sentencing is the purpose behind the speedy sentencing right.


[74] Sterling does not help Wallace. It refers to the purposes behind the right to a speedy trial, one of which is "to minimize anxiety and concern accompanying public accusation." *fn44 It further states that this interest is attenuated once the trial reaches the sentencing stage. "The convicted defendant may be anxious, but it is no longer an anxiety resulting from public accusation, but apprehension of punishment." *fn45 Therefore, a standard of reasonableness applies to the timeliness of sentencing rather than the standard that applies to the timeliness of trial. *fn46


[75] In the only case where a Washington appellate court determined that a trial court's decision to delay sentencing was purposeful and oppressive, there was absolutely no reason given for the delay. *fn47 That court found prejudice to the defendant where the defendant had become an upstanding citizen during the two-year delay following his conviction. *fn48 On these facts, it found that the delay was purposeful and oppressive.


[76] The factors that indicated a purposeful and oppressive delay in Ellis are not present in this case. There was no violation of Wallace's speedy sentencing right.


[77] We affirm the sentence.


[78] WE CONCUR:


[79] Susan R. Agid


[80] C. Kenneth Grosse



--------------------------------------------------------------------------------

Opinion Footnotes

--------------------------------------------------------------------------------

[81] *fn1 Former RCW 9.94A.030(36)(b).


[82] *fn2 Former RCW 9.94A.030(36)(b).


[83] *fn3 See In re Boot, 130 Wash. 2d 553, 572, 925 P.2d 964 (1996).


[84] *fn4 State v. Heiskell, 129 Wash. 2d 113, 123-24, 916 P.2d 366 (1996) (quoting Westerman v. Cary, 125 Wash. 2d 277, 294-95, 892 P.2d 1067 (1994)).


[85] *fn5 Petersen v. State, 100 Wash. 2d 421, 444, 671 P.2d 230 (1983).


[86] *fn6 Heiskell, 129 Wash. 2d at 123 (quoting Westerman, 125 Wash. 2d at 294-95).


[87] *fn7 Heiskell, 129 Wash. 2d at 123.


[88] *fn8 State v. Manussier, 129 Wash. 2d 652, 673, 921 P.2d 473 (1996), cert. filed (Jan. 1997).


[89] *fn9 Chapman v. United States, 500 U.S. 453, 465, 111 S. Ct. 1919, 114 L. Ed. 2d 524 (1991) (citations omitted). The court goes on to note that equal protection analysis "essentially duplicates" an argument based on due process. See also In re Young, 95 Wash. 2d 216, 227, 622 P.2d 373 (1980) (holding that prisoners do not have a liberty interest for purpose of Fourteenth Amendment due process analysis with respect to transfers from one prison facility to another, absent a "reasonable expectation grounded in state law that he will not be transferred except upon a finding of certain facts . . . .")


[90] *fn10 State v. Thorne, 129 Wash. 2d 736, 771, 921 P.2d 514 (1996).


[91] *fn11 509 U.S. 312, 320, 113 S. Ct. 2637, 125 L. Ed. 2d 257 (1993) (quoting F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S. Ct. 2096, 124 L. Ed. 2d 211 (1993)).


[92] *fn12 Heller, 509 U.S. at 320.


[93] *fn13 Beach Communications, 508 U.S. at 315.


[94] *fn14 Beach Communications, 508 U.S. at 315.


[95] *fn15 Beach Communications, 508 U.S. at 316.


[96] *fn16 Brief of Respondent at 23 (citing National Narcotics Intelligence Consumers Committee, The NNICC Report, 1985-1986 (1987)).


[97] *fn17 Griffin, 130 Wash. 2d at 66 (citing O'Hartigan v. Department of Personnel, 118 Wash. 2d 111, 124, 821 P.2d 44 (1991) (quoting Railway Express Agency v. People of State of New York, 336 U.S. 106, 110, 69 S. Ct. 463, 93 L. Ed. 533 (1949)).


[98] *fn18 See State v. Parker, 76 Wash. App. 747, 749, 888 P.2d 167 (1995) (describing home detention as "cost effective alternative to total confinement").


[99] *fn19 See Laws of 1988, ch. 154, enacting the original home detention provision. The governor vetoed section 1 of the bill which specifically stated that partial confinement would be limited to "appropriate offenders" under the statute, but in doing so stated that "this bill contains reasonable provisions preventing use of home detention for persons who committed violent crimes and other offenses where the court feels the public or victims would be at risk."


[100] *fn20 76 Wash. App. 150, 156-57, 883 P.2d 333 (1994), aff'd, 129 Wash. 2d 211, 916 P.2d 384 (1996) (holding that a statute providing for a waiver of standard sentencing for first time offenders that excluded offenders convicted of delivering narcotic substances passed minimal scrutiny because the classification related to the state's interest in controlling the problems created by such drugs).


[101] *fn21 In re Electric Lightwave, Inc., 123 Wash. 2d 530, 545, 869 P.2d 1045 (1994).


[102] *fn22 RCW 2.06.040.


[103] *fn23 See State v. Hagen, 55 Wash. App. 494, 498, 781 P.2d 892 (1989) (CrR 3.6 hearing).


[104] *fn24 State v. Sommerville, 111 Wash. 2d 524, 534, 760 P.2d 932 (1988).


[105] *fn25 Burnside v. Simpson Paper Co., 66 Wash. App. 510, 526, 832 P.2d 537 (1992), aff'd, 123 Wash. 2d 93, 864 P.2d 937 (1994).


[106] *fn26 509 U.S. 25, 113 S. Ct. 2475, 125 L. Ed. 2d 22 (1993) (remanding case involving Eighth Amendment claim by prisoner housed with a five-pack-a-day smoker to the District Court to determine the potential harm from this cigarette smoke exposure).


[107] *fn27 See Helling, 509 U.S. at 36.


[108] *fn28 Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994).


[109] *fn29 Coleman v. Wilson, 912 F. Supp. 1282, 1298 (E.D. Cal. 1995), appeal dismissed, 101 F.3d 705 (9th Cir. 1996).


[110] *fn30 Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994).


[111] *fn31 State v. Branch, 129 Wash. 2d 635, 646, 919 P.2d 1228 (1996).


[112] *fn32 Helling, 509 U.S. at 36.


[113] *fn33 Helling, 509 U.S. at 28 (prisoner was housed with five-pack-a-day smoker at the time the case was brought); Farmer, 511 U.S. 825, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (transsexual prisoner had been assaulted by fellow prisoners when case was brought).


[114] *fn34 Helling, 509 U.S. at 35-36.


[115] *fn35 RCW 9.94A.110.


[116] *fn36 State v. Roberts, 77 Wash. App. 678, 894 P.2d 1340 (1995).


[117] *fn37 Roberts, 77 Wash. App. at 685.


[118] *fn38 Roberts, 77 Wash. App. at 685.


[119] *fn39 State v. Ellis, 76 Wash. App. 391, 394, 884 P.2d 1360 (1994).


[120] *fn40 Ellis, 76 Wash. App. at 394 (quoting Pollard v. United States, 352 U.S. 354, 361, 77 S. Ct. 481, 1 L. Ed. 2d 393 (1957)); State v. Johnson, 100 Wash. 2d 607, 674 P.2d 145 (1983), overruled on other grounds by State v. Bergeron, 105 Wash. 2d 1, 711 P.2d 1000 (1985); State v. Edwards, 93 Wash. 2d 162, 606 P.2d 1224 (1980)).


[121] *fn41 407 U.S. 514, 532, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972) (applying four-part analysis to speedy trial right) (cited in State v. Sterling, 23 Wash. App. 171, 596 P.2d 1082 (1979)). See also Ellis, 76 Wash. App. at 394.


[122] *fn42 Sterling, 23 Wash. App. at 176.


[123] *fn43 Sterling, 23 Wash. App. at 176.


[124] *fn44 Sterling, 23 Wash. App. at 175 (quoting United States v. Ewell, 383 U.S. 116, 120, 86 S. Ct. 773, 15 L. Ed. 2d 627 (1966)).


[125] *fn45 Sterling, 23 Wash. App. at 175.


[126] *fn46 Sterling, 23 Wash. App. at 175.


[127] *fn47 Ellis, 76 Wash. App. at 395. See also Edwards, 93 Wash. 2d at 167 (delay in sentencing was unreasonable where Judge was influenced in sentencing decision by escape from treatment program that occurred between guilty plea and sentencing).


[128] *fn48 Ellis, 76 Wash. App. at 395.