Opinion
No. 59742-6-I.
August 25, 2008.
Appeal from a judgment of the Superior Court for Skagit County, No. 06-1-00527-8, John M. Meyer, J., entered February 8, 2007.
Reversed and remanded by unpublished opinion per Schindler, C.J., concurred in by Ellington and Lau, JJ.
The court imposed an exceptional sentence downward on Susan Featherstone's conviction for theft in the first degree. Relying on State v. Calvert, 79 Wn. App. 569, 903 P.2d 1003 (1995), the court concluded that because the appreciable difference between cashing 96 checks totaling $60,000 or one check for that amount was nonexistent, trivial, or trifling, a standard range sentence of 43 to 57 months was clearly excessive under the multiple offense policy of the Sentencing Reform Act of 1987 (SRA). The State appeals, arguing that there was an insufficient legal basis for imposing an exceptional sentence. We agree. Here, unlike in Calvert, Featherstone's protracted scheme over a ten month period resulted in significant cumulative consequences to the victims that were not nonexistent, trivial, or trifling.
Because substantial and compelling reasons do not justify an exceptional sentence, we reverse and remand for resentencing within the standard sentence range.
John and Pauline Hinchman are both in their 70s. John Hinchman was a successful self-employed commercial fisherman, and his spouse, Pauline Hinchman, did the bookkeeping for the business. After John suffered a serious stroke in 2003, he could no longer work and required full time care. Pauline hired her son's girlfriend Susan Featherstone to help care for John and help with the household tasks. Although Featherstone had worked as a nurse for a number of years, she did not work during her four-year relationship with Pauline's son.
Between November 2004 and September 2005, Featherstone stole approximately 200 checks from John and Pauline Hinchman's Skagit State Bank account. Featherstone made the checks out to herself, forged Pauline's name and cashed 96 different checks in amounts ranging from $815 to $952.
On September 14, 2005, Pauline contacted the Sedro-Woolley police to report that Featherstone had stolen more than 200 checks, forged Pauline's signature, and cashed checks totaling more than $50,000 on the Hinchmans' Skagit State Bank account. The next day, Pauline submitted 96 affidavits of forgery to the police for the checks that were unlawfully presented by Featherstone from November 15, 2004 to September 14, 2005, totaling approximately $60,000.
When Featherstone was arrested, she was attempting to cash another forged check at a Skagit State Bank located in Bellingham. According to the record, the Bellingham Police Department referred information about 22 other instances of forgery totaling $15,207 to the Whatcom County Prosecutor.
The State charged Featherstone with one count of theft in the first degree in the aggregate for the total amount, Count I. The State also alleged aggravating factors to justify an exceptional sentence upward — that the monetary loss was substantially greater than typical, that the crime involved a high degree of planning over a lengthy period of time, and that Featherstone's position of trust facilitated the crime. Count I states:
On or about and between November 15, 2004 and September 14, 2005, in the county of Skagit, State of Washington, the above-named Defendant, in a series of transactions which are part of a criminal episode or a common scheme or plan, did wrongfully obtain or exert unauthorized control over property, . . . to-wit: US CURRENCY FROM THE ACCOUNT OF JP COMPANY-JOHN PAULINE HINCHMAN, of an aggregate value exceeding $1,500, with intent to deprive such other of such property or services; . . . and further that: the current offense involved multiple victims or multiple incidents per victim and/or involved attempted or actual monetary loss substantially greater than for the typical offense and/or involving a high degree of sophistication or planning or occurred over a lengthy period of [time] and/or was facilitated by the defendant's use of his or her position of trust, confidence, or fiduciary responsibility contrary to Revised Code of Washington 9.94A.535(3)(d).
The State also charged Featherstone with 15 counts of forgery representing approximately $12,000 of the total amount stolen, Counts II to XVI. For example, Count II alleged that:
On or about December 30, 2004, in the County of Skagit, State of Washington, the above-named Defendant, with intent to injure or defraud, did falsely make, complete or alter a written instrument, and/or did possess, utter, offer, dispose of, or put off as true a written instrument which s/he knew to be forged, said instrument being CHECK #5142 FOR THE SUM OF $900.00; contrary to Revised Code of Washington 9A.60.020(1).
On December 7, 2006, Featherstone pleaded guilty as charged and agreed that she had a prior felony conviction for violation of the Uniform Controlled Substances Act (VUCSA). In the plea, Featherstone admits that:
[B]etween November 15, 2004 and September 14, 2005, in Skagit County, I did, with intent to injure or defraud, utter checks which I knew to be forged. Also, I did wrongfully obtain money from cashing those checks [which] was the property of another with intent to deprive the person of the property in an amount exceeding $1500.
Based on an offender score of 9+, Featherstone's standard range was 43 to 57 months on Count I and 22 to 29 months on Counts II and XVI. The plea agreement states that the prosecuting attorney will recommend the judge sentence Featherstone to a 57 month concurrent sentence and payment of restitution for all of the charged and uncharged forged checks.
In her presentence memorandum, Featherstone argued that the theft and forgery convictions were the same criminal conduct, resulting in an offender score of one and a standard range sentence of 2 to 6 months on the theft conviction. In the alternative, Featherstone asked the court to impose a First Time Offender Waiver, a Drug Offender Sentencing Alternative (DOSA) sentence, or an exceptional sentence downward on the theft conviction. In opposition, the State argued that the court should impose a standard range sentence of 22 to 29 months on each of the forgery convictions and 57 months on the theft conviction to be served concurrently. The State also submitted a victim impact statement from Pauline describing the devastating impact that Featherstone's crimes had on the Hinchmans. The total monetary loss to the Hinchmans was $74,384. Because Pauline gave Featherstone a key and access to their home, Skagit State Bank did not cover the loss for the forged checks. Pauline said that the loss had depleted their retirement savings, leaving them with only a small amount of Social Security income to live on. Pauline said that they were forced to take out unsecured loans with high interest rates to have enough money for living expenses. The Hinchmans were also unable to pay their federal taxes, which were already in arrears due to John's health problems.
At the sentencing hearing on January 25, Featherstone's sister told the court that she and her father might be able to make a partial restitution payment of $20,000. The court continued the sentencing to February 8 "to see if anything occurs that might make me want to consider identifying something as a mitigating circumstance, such as payment of a substantial sum of restitution." No restitution was paid before the February 8 hearing.
At the rescheduled sentencing hearing, the court rejected Featherstone's argument that the theft and the forgery conviction were the same criminal conduct. The court also denied Featherstone's request for a First Time Offender Waiver or a DOSA sentence. However, based on Calvert, the court concluded that because there was no appreciable difference between cashing one forged check for $60,000 or 96 checks for that amount, a sentence within the standard range under the multiple offense policy for the theft conviction was clearly excessive, considering the purpose of the Sentencing Reform Act (SRA), chapter 9.94A RCW. The court imposed an exceptional sentence downward of 30 months on the theft conviction. The court also imposed a standard range 29 month sentence on each of the 15 forgery convictions to be served concurrently, and ordered Featherstone to pay the agreed amount of $59,183 in restitution to the Hinchmans.
The court's written findings of fact in support of the exceptional sentence on the theft conviction first set forth the State's charges for Count I and the fact that Featherstone pleaded guilty as charged. The court then describes the reason for continuing the sentence, the fact that no restitution had been paid, and that restitution was an important consideration in determining whether to impose an exceptional sentence downward.
7. The court continued the sentencing hearing to February 8, 2007, to see if anything occurred which the court may consider as a mitigating circumstance, such as payment of a substantial sum of restitution.
9. As of February 8, 2007, restitution has not been paid to the clerk.
14. The court weighs how much punishment is appropriate against the possibility of future payment of restitution to elderly victims in their lifetime.
The conclusions of law in support of the exceptional sentence explain the basis for the court's determination:
4. Based on State v. Calvert, 79 Wash. App. 569, 903 P.2d 103 (1995) there is no appreciable difference in cashing one check for $59,183.00 and ninety-six checks in smaller amounts over a ten month period of time; the cumulative effect would not have been any different.
5. Since there is no appreciable difference between cashing a single check for a sum or several smaller checks totaling the same amount, a sentence within the standard range of forty-three to fifty-seven months on the charge of Theft in the First Degree is clearly excessive in light of the SRA's multiple current offense policy under RCW 9.94A.535.
The State argues that there is no factual basis in the record to support the imposition of an exceptional sentence below the standard sentence range and substantial and compelling reasons do not support the exceptional sentence.
As a general rule, the sentencing court must impose a standard range sentence under the SRA. RCW 9.94A.585(2). However, if the sentencing court finds "substantial and compelling reasons justifying an exceptional sentence," the court may impose a sentence outside the standard sentence range. RCW 9.94A.535. The SRA sets forth a nonexclusive list of mitigating and aggravating factors that can support an exceptional sentence. RCW 9.94A.535. RCW 9.94A.535(1)(g) provides that a mitigating factor for an exceptional sentence exists if "[t]he operation of the multiple offense policy of RCW 9.94A.589 results in a presumptive sentence that is clearly excessive in light of the purpose of this chapter, as expressed in RCW 9.94A.010."
RCW 9.94A.010 sets forth the purpose of the SRA:
The purpose of this chapter is to make the criminal justice system accountable to the public by developing a system for the sentencing of felony offenders which structures, but does not eliminate, discretionary decisions affecting sentences, and to:
(1) Ensure that the punishment for a criminal offense is proportionate to the seriousness of the offense and the offender's criminal history;
(2) Promote respect for the law by providing punishment which is just;
(3) Be commensurate with the punishment imposed on others committing similar offenses;
(4) Protect the public;
(5) Offer the offender an opportunity to improve him or herself;
(6) Make frugal use of the state's and local governments' resources; and
(7) Reduce the risk of reoffending by offenders in the community.
The Legislature also sets forth the requirements for reversal of an exceptional sentence. RCW 9.94A.585(4) provides that:
To reverse a sentence which is outside the standard sentence range, the reviewing court must find: (a) Either that the reasons supplied by the sentencing court are not supported by the record which was before the judge or that those reasons do not justify a sentence outside the standard sentence range for that offense; or (b) that the sentence imposed was clearly excessive or clearly too lenient.
In State v. Alexander, 125 Wn.2d 717, 722, 888 P.2d 1169 (1995), the Court construed the statute to create a three-prong test. On appeal, the court must determine (1) whether the record supports the findings of fact used to justify the exceptional sentence, (2) whether the findings constitute substantial and compelling reasons to depart from the standard range sentence as a matter of law, and (3) whether the sentence imposed was clearly excessive or clearly too lenient.Alexander, 125 Wn.2d at 722-23, 731. As to the first prong, we review the trial court's findings of fact according to a clearly erroneous standard. Alexander, 125 Wn.2d at 723. As to the second prong, the court determines de novo whether the findings establish substantial and compelling reasons to justify an exceptional sentence. The trial court's reasons "may not take into account factors already considered in computing the presumptive range for the offense." State v. Pascal, 108 Wn.2d 125, 135-36, 736 P.2d 1065 (1987). As such, the purposes of the Sentencing Reform Act (SRA) as stated in RCW 9.94A.010 are insufficient to justify a departure from the guidelines. State v. Law, 154 Wn.2d 85, 97, 110 P.3d 717 (2005). Finally, as to the third prong, the court reviews the question of whether the sentence is clearly too lenient or excessive under an abuse of discretion standard.Alexander, 125 Wn.2d at 731.
Here, the only finding of fact justifying an exceptional sentence was the "possibility of future payment of restitution to elderly victims in their lifetime" is clearly erroneous. InLaw, 154 Wn.2d at 104, the Supreme Court held that because the defendant's inability to pay restitution while incarcerated does not distinguish the crime from others in the same category, it is not a substantial and compelling reason that justifies an exceptional sentence downward.
The court relied on Calvert to conclude that there was no appreciable difference between cashing one check for $59,183 and 96 checks for the same amount and the standard sentence range was clearly excessive under the multiple current offense policy. But this record does not establish substantial and compelling reasons justifying an exceptional sentence underCalvert.
In Calvert, the defendant pleaded guilty to five counts of forgery for depositing forged checks within a one week period totaling $1575. Calvert, 79 Wn. App. at 572. We affirmed the imposition of an exceptional sentence below the standard range based on the court's finding that the difference between "the cumulative effects of writing several small checks worth a total of $1,575 and the effect of writing one large check for that amount" over a one week period was minimal. Because of the close relationship in time, intent and scheme, we concluded the sentencing court did not err as a matter of law in deciding that the minimal cumulative effect of the crimes was a substantial and compelling reason to impose an exception sentence.
The court here focused its examination on the difference between the cumulative effects of writing several small checks worth a total of $1,575 and the effect of writing one large check for that amount. In essence, the court found that the whole should not be greater than the sum of its parts. Considering the close relationship in time, intent and scheme of the several forgeries, we find that the sentencing court was within the authority granted in RCW 9.94A.390(1)(g) when it found that the minimal cumulative effects of the crimes were substantial and compelling reasons for imposing an exceptional sentence. Calvert, 79 Wn. App. at 583.
By contrast, in State v. Kinneman, 120 Wn. App. 327, 84 P.3d 882 (2003), this court reversed the sentencing court's decision to impose an exceptional sentence based on the reasoning in Calvert. In Kinneman, we held that the record did not support finding that the cumulative effect of the thefts were "nonexistent, trivial, or trifling" and substantial and compelling reasons did not support an exceptional sentence downward. Kinneman, 120 Wn. App. at 346, 348.
Over the course of 16 months, the attorney inKinneman made 67 unauthorized withdrawals from his Interest on Lawyer Trust Account (IOLTA) totaling over $200,000. The sentencing court relied on Calvert to impose an exceptional sentence downward on the grounds that the operation of the multiple offense policy resulted in a standard range clearly excessive. Kinneman, 120 Wn. App. at 343. We held that the sentencing court's finding that the "`cumulative effect of the [67] separate crimes was virtually nonexistent'" was not supported by the record and substantial and compelling reasons did not support the exceptional sentence.Kinneman, 120 Wn. App. at 344, 346 (alteration in original).
A cumulative effect of Kinneman's 67 thefts totaling $208,713.10 was the foreclosure of four of the five properties for which funds had been deposited in his IOLTA account. Nothing in the record suggests the first theft would have caused the foreclosures and loss of the real property. Therefore, the cumulative effect cannot be said to be nonexistent, trivial, or trifling. Kinneman, 120 Wn. App. at 346.
The facts here are much closer to Kinneman than toCalvert. Over the course of ten months Featherstone forged and cashed 96 checks totaling nearly $60,000. Because the Bank refused to pay for the loss, the Hinchmans were responsible for the total amount of the checks Featherstone forged and cashed. The cumulative effect of Featherstone's protracted scheme resulted in devastating financial consequences to the Hinchmans who are both in their 70s and suffer from health problems. The Hinchmans' retirement savings were depleted. As a result, they were unable to pay their taxes and were forced to take out high-interest loans to supplement the small Social Security income they had to live on. The record does not support the court's conclusion that the cumulative effect of Featherstone's crimes was nonexistent, trivial, or trifling, and substantial or compelling reasons do not justify the imposition of an exceptional sentence downward for the theft in the first degree conviction.
If the sentencing court's decision to impose an exceptional sentence is reversed, Featherstone argues that we should affirm the sentence on the alternative grounds that the theft and forgery convictions were not the same criminal conduct. But a respondent seeking affirmative relief must file a cross appeal.Smoke v. City of Seattle, 79 Wn. App. 412, 902 P.2d 678 (1995). Under RAP 5.1(d), "a notice of cross appeal is essential if the respondent seeks affirmative relief as distinguished from urging additional grounds for affirmance."In re Arbitration of Doyle, 93 Wn. App. 120, 127, 966 P.2d 1279 (1998). Where, as here, the respondent requests partial reversal of the trial court's decision, the respondent is seeking affirmative relief. Doyle, 93 Wn. App. at 127. Because Featherstone did not file a cross appeal, we will not consider her argument that we should affirm on an alternative ground.
We reverse the court's imposition of an exceptional sentence downward on theft in the first degree and remand for resentencing within the standard range.
The State asks us to remand to a different judge for resentencing. Reassignment is appropriate if the trial court has shown personal bias or other unusual circumstances support reassignment. Ellis v. United States Dist. Court, 356 F.3d 1198, 1211 (9th Cir. 2004). Because the record does not reflect either a personal bias or unusual circumstances, we reject the State's request. We also decline to award the State costs on appeal. State v. Nolan, 141 Wn.2d 620, 626, 8 P.3d 300 (2000).
WE CONCUR: