Opinion
No. 30743-0-II, Consolidated with No. 31504-1-II And No. 32041-0-II
Filed: June 7, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 03-1-01739-8. Judgment or order under review. Date filed: 08/07/2003. Judge signing: Hon. Waldo F. Stone.
Counsel for Appellant(s), Brian Patrick McLean, Leahy.ps, 25 Central Way Ste 430, Kirkland, WA 98033-6158.
Hillary Lee Walls (Appearing Pro Se), #756217, Wa Corr Cntr, P.O. Box 900, Shelton, WA 98584.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
John Michael Sheeran, Attorney at Law, Pierce Cty Prosecutor S, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.
Hillary Walls appeals his convictions of second degree identity theft, forgery, and third degree theft, arguing that the trial court wrongly denied him the opportunity for a CrR 3.6 suppression hearing, the government committed misconduct, insufficient evidence supports his convictions, and he was denied his right to allocute at sentencing. He also challenges his exceptional sentence. We affirm Walls's convictions, but vacate his exceptional sentence and remand for further proceedings.
FACTS
In June 2002, Hillary Walls contacted William and Carolyl Mayer, who distributed health and wellness products for the Nikken Corporation. Walls, who said he was Hillary Holcomb and claimed to be part-owner of a pharmacy, expressed interest in buying some of the Mayers' products. The parties met several times, and Walls and the Mayers attended a Nikken workshop together.
Walls eventually agreed to purchase $5,000 of Nikken products from the Mayers. Walls suggested that he wire the payment to the Mayers' checking account; the Mayers would order the products and have them shipped to Walls. The Mayers gave Walls the name of their bank and their bank account number. While the Mayers and Walls ate lunch, Walls appeared to repeatedly attempt to complete the transfer via cellular telephone conversations, but the Mayers could not hear the other end of the conversations. After lunch, Walls told the Mayers to go to their bank to see why the transfer would not occur. The Mayers then dropped Walls off at a chiropractor's office and went to their bank. A bank manager told the Mayers that no transfer had been attempted.
The Mayers had previously agreed to give Walls a ride to a restaurant near SeaTac airport to meet Nathan Cogdill. During the drive, Walls asked for the Mayers' checkbook so he could use the account number for another transfer attempt. Carolyl handed the checkbook over her shoulder to Walls. After this attempt was unsuccessful, Walls asked if the Mayers had another account. William told Walls that he had a Peninsula Credit Union account and handed him his wallet after Walls asked for the account number and his driver's license. William's credit union identification card was in the wallet at the time. When Walls returned the wallet, William did not check it to see if anything was missing. The Mayers did not give Walls permission to keep any of their checks or cards.
After meeting Cogdill, the Mayers drove him and Walls to a bank because Walls told them Cogdill needed cash for a rental car. At the bank, Cogdill went inside to cash a check. The Mayers never saw Walls again after dropping him off that night.
Three days later, the Mayers' bank notified them that it had returned check number 8830 for $500 for insufficient funds. Carolyl examined her checkbook and discovered that this check was missing. Without authorization, someone had filled out the check and signed William's name.
On August 30, 2002, Pierce County Deputy Sheriff Arthur Centoni contacted Walls at a Tacoma residence. After Walls retrieved his purse, Centoni seized it and gave it to Detective Jane McCarthy. McCarthy found William's credit union card inside the purse. McCarthy also found the Mayers' cancelled check in a later search of the Tacoma residence. This check was endorsed by Cogdill, who later testified that Walls had deposited the check in Cogdill's account.
The State charged Walls with second degree identity theft, forgery, two counts of third degree theft, and two counts of third degree possession of stolen property. The State later withdrew the possession of stolen property counts. Before trial, Walls's assigned counsel withdrew and another attorney was appointed as stand-by counsel. Walls represented himself in pretrial motions and at trial.
On June 4, 2003, Walls filed a CrR 8.3 motion to suppress and to dismiss based on governmental misconduct. The motion alleged that two searches of his jail cell led to viewing and seizure of materials protected by the attorney-client privilege. Sergeant Patricia Jackson and Detective McCarthy conducted these searches, which were unrelated to this case. The court heard some testimony on the motion before trial and informed Walls he could make a further record of the alleged misconduct during trial recesses. During trial, Walls asked for a hearing on the jail search issue. The court denied this request, but it did allow Walls to testify about the misconduct at the end of trial. The court denied Walls's motions to suppress and to dismiss.
The search warrant McCarthy obtained listed `Any other paperwork, notes, names, or addresses which may be related to WALLS' fraudulent activities or the use of evidence copies for fraudulent purposes (which were provided to WALLS for the express purpose of representing himself in court for a previous case which he is now appealing.)' But McCarthy obtained the warrant on April 18, 2003, before trial had even begun in this case. Clerk's Papers (CP) at 170-71.
A jury convicted Walls as charged and the trial court imposed an exceptional sentence of 36 months, obtained by running Walls's 22-month sentence for identity theft consecutive to his 14-month forgery conviction. The trial court imposed an exceptional sentence because: (1) the Mayers were particularly vulnerable, (2) Walls committed a series of offenses, (3) Walls's five unscored misdemeanor convictions, (4) most of Walls's prior convictions and all of his current convictions were crimes of dishonesty, (5) the sophistication of the crimes, and (6) Walls's failure to accept responsibility for his actions. The court imposed two suspended 365-day sentences for the theft convictions.
ANALYSIS I. CrR 3.6 Motion Issues
In his direct appeal, Walls argues that McCarthy's search of his jail cell exceeded the warrant's scope because McCarthy seized Walls's legal documents. The State responds that the court properly denied Walls a CrR 3.6 hearing because no evidence seized in the search was admitted at trial.
When evidence is obtained in an illegal search, the proper remedy is usually exclusion of the evidence at trial. Wong Sun v. United States, 371 U.S. 471, 485-86, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). But the State did not offer any of the documents McCarthy seized at Walls's trial on these charges. McCarthy's search of the cell was part of an investigation into an unrelated case. The proper remedy for an illegal search is suppression and this remedy is unavailable here because there is no evidence to suppress.
In his personal restraint petition (PRP) and statement of additional grounds (SAG), Walls argues that he was improperly denied a CrR 3.6 hearing. The State responds that Walls does not make a prima facie case that he was entitled to a CrR 3.6 hearing.
Under either his direct appeal or his PRP, Walls must make some showing of prejudice. State v. Contreras, 92 Wn. App. 307, 312, 966 P.2d 915 (1998); In re Pers. Restraint of Rice, 118 Wn.2d 876, 885-86, 828 P.2d 1086 (1992). And because the State offered no evidence seized in the jail cell search in this trial, Walls cannot show prejudice.
II. CrR 8.3 (Governmental Misconduct)
In both his PRP and SAG, Walls argues that McCarthy searched his cell and looked at or seized his attorney work product or documents protected by attorney-client privilege. He claims that McCarthy could have learned his trial strategy, gained insight into how to answer his cross examination questions, and that she took contact information for potential witnesses. In sum, Walls argues that the jail cell searches by Jackson and McCarthy impaired his ability to act as his own counsel and prejudice resulted. Accordingly, we address these issues under CrR 8.3(b).
Under CrR 8.3(b), a court `may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused's right to a fair trial.' To obtain dismissal, a defendant must show (1) arbitrary governmental action or misconduct that (2) prejudices the defendant's right to a fair trial. State v. Miller, 92 Wn. App. 693, 702, 964 P.2d 1196 (1998) (citing State v. Michielli, 132 Wn.2d 229, 239-40, 937 P.2d 587 (1997)). The misconduct need not be of an evil nature, simple mismanagement is enough. Michielli, 132 Wn.2d at 239. We review a trial court's CrR 8.3(b) ruling for a manifest abuse of discretion, i.e., a ruling based on untenable grounds or reasons. Miller, 92 Wn. App. at 702.
Jackson contacted Walls in his cell to look for a notarized document that may have been relevant to an unrelated investigation of Walls. Walls allowed her to look through a bin containing numerous documents. Jackson did not seize any documents; her purpose was to determine if Walls had the notarized document in question.
As part of the same investigation, McCarthy executed a search warrant on Walls's cell. And although she did seize a number of documents, she testified that she did not seize anything related to this case. Rather, she `made a very conscious effort not to take anything that looked like it might be remotely related to anything that I thought was going to go to trial. I was looking for items pertaining to that one case.' Report of Proceedings (RP) (June 27, 2004) at 236. McCarthy did not give the prosecutor any documents she seized.
Walls testified that McCarthy seized paperwork with the contact information for several potential witnesses but, on cross examination, he could not explain what testimony the witnesses would have given.
The trial court denied Walls's CrR 8.3(b) motion because it found that Jackson and McCarthy made routine searches and were more credible than Walls. The record supports this finding; the court did not abuse its discretion in denying Walls's motion to dismiss for governmental misconduct.
Moreover, Walls's cases are distinguishable. In State v. Garza, 99 Wn. App. 291, 994 P.2d 868 (2000), corrections officers seized and examined inmates' legal materials after discovering an attempted escape. The trial court denied the inmates' CrR 8.3(b) motion, and Division Three remanded for additional fact-finding on whether the officers' action violated their right to counsel. But Garza involved a clear and purposeful intrusion into inmates' legal documents. Garza, 99 Wn. App. at 300-02. Here, Walls failed to prove that McCarthy intended to or did examine his legal materials. And in State v. Cory, 62 Wn.2d 371, 382 P.2d 1019 (1963), police eavesdropped on a conversation between a defendant and his attorney. Neither case supports Walls's argument.
III. Sufficiency of the Evidence
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). `A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.' Salinas, 119 Wn.2d at 201 (citing State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254 (1980)). Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
The jury makes all credibility determinations. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). We defer to the jury on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992) (citing State v. Longuskie, 59 Wn. App. 838, 844, 801 P.2d 1004 (1990)).
1. Forgery
Walls argues that the evidence was insufficient to convict him of forgery, arguing that the evidence shows that it was probably Cogdill who forged the check.
A person commits forgery if, with intent to injure or defraud, `[h]e falsely makes, completes, or alters a written instrument or . . . [h]e possesses, utters, offers, disposes of, or puts off as true a written instrument which he knows to be forged.' RCW 9A.60.020(1)(a), (b). The jury instruction mirrored the statutory language and added the possibility that Walls acted with an accomplice.
The forgery to-convict instruction provided in relevant part:
To convict the defendant of . . . Forgery as charged in Count II, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That during the period between the 14th day of June, 2002, and the 29th day of August, 2002, the defendant and/or an accomplice either:
a) falsely made or completed or altered a written instrument, and/or
b) possessed or uttered or offered or disposed of or put off as true a written instrument which had been falsely made, completed or altered; with knowledge that the instrument had been falsely made, completed, or altered;
(2) That the defendant and/or the accomplice acted with the intent to injure or defraud; and
(3) That the acts occurred in the State of Washington. CP at 68.
Carolyl and William testified that Carolyl handed Walls their checkbook on the way to the airport. Walls did not have permission to keep any checks. After picking up Cogdill, the Mayers drove him and Walls to a bank, where they attempted to cash a check. Cogdill testified that Walls gave him the check, explaining that it was from someone who owed Walls money. The Mayers' bank rejected the check for insufficient funds. William had neither signed the check nor filled it out. Carolyl discovered that the check the bank returned was missing from the checkbook. Viewing this evidence in the light most favorable to the State, a rational jury could have found that Walls forged the check, either as principal or accomplice.
2. Second Degree Identity Theft
Walls argues that the evidence was insufficient to convict him of second degree identity theft because the State presented no evidence that he intended to commit a crime with William's credit union card.
To prove second degree identity theft, the State had to prove beyond a reasonable doubt that the defendant obtained, possessed, used, or transferred `a means of identification or financial information of another person, living or dead, with the intent to commit, or to aid or abet, any crime.' Former RCW 9.35.020(1) (2002). Specific criminal intent may be inferred from the defendant's conduct where it is `plainly indicated as a matter of logical probability.' Delmarter, 94 Wn.2d at 638.
At Walls's request, William handed him his wallet during the drive to the airport. The evidence was sufficient for the jury to infer that Walls had already taken the blank check from Carolyl's check book and that he removed the credit union card from William's wallet. William had not given Walls permission to possess the card. Walls then participated in passing a forged $500 check. Later, the police found the card in Walls's purse and the check in the home where Walls had been staying. This evidence was sufficient for the jury to conclude that Walls took the credit union card to facilitate passing the forged check.
3 Third Degree Thefts of the Check and Credit Union Card
Walls argues that the evidence was insufficient to prove that he wrongfully obtained control of the check and credit union card; he suggests the evidence shows that Cogdill likely committed the crimes. The State correctly responds that the evidence shows that Walls obtained these items before they picked up Cogdill from the restaurant.
A person commits third degree theft if he `wrongfully obtain[s] or exert[s] unauthorized control over the property . . . of another . . . with intent to deprive him or her of such property,' and the property's value does not exceed $250. RCW 9A.56.020; see RCW 9A.56.050.
RCW 9A.56.020 was amended effective June 10, 2004, by Laws of Washington, chapter 122, section 1, but this language remained the same.
The Mayers handed Walls the wallet and checkbook on the way to pick up Cogdill; Walls did not have permission to take the card and check. The evidence was sufficient that he wrongfully obtained these items. Moreover, the to-convict instructions for these charges included the possibility of accomplice liability.
IV. Allocution
Walls argues that the sentencing court violated his due process rights because it denied him a meaningful opportunity to allocute. The crux of Walls's argument is that although he made arguments against an exceptional sentence as pro se counsel, he did not have the opportunity to address the court as the defendant.
The sentencing court must allow the defendant to argue concerning the sentence to be imposed. RCW 9.94A.500(1). Walls cites State v. Happy, 94 Wn.2d 791, 620 P.2d 97 (1980), arguing that `[i]t is a violation of due process to deny the defendant an opportunity to speak immediately before the imposition of a sentence.' Br. of App. at 18. But `[Happy] does not support a conclusion that the right of allocution is a constitutional due process right.' In re Pers. Restraint of Echeverria, 141 Wn.2d 323, 340, 6 P.3d 573 (2000). A defendant's statutory right to allocute is satisfied if he is allowed to make his argument during sentencing and before sentence is imposed. Echeverria, 141 Wn.2d at 340. And the defendant's `allocutive statement' in his direct testimony at sentencing satisfied his right to allocute before sentence is imposed. Echeverria, 141 Wn.2d at 340-41.
At sentencing, the court directed:
I expect to not interrupt either side. I expect to make no rulings on relevance. I will grant the prosecutor ten minute's [sic] presentation, with no interruption from me or Mr. Walls. I will grant Mr. Walls 15 minutes, with no interruptions from the prosecutor or from the judge. I will note a continuing exception on behalf of Mr. Walls to anything that he considers irrelevant in the prosecutor's presentation. I will note a continuing exception on behalf of the prosecutor on Mr. Walls as to whether his information is relevant or not.
RP (Aug. 7, 2003) at 526.
After the State argued for an exceptional sentence, Walls disputed the dates of his prior convictions and made numerous legal arguments about the aggravating factors; he also commented that `[t]his case is about an egregious prosecutor who has made me his personal project.' RP (Aug. 7, 2003) at 532-33. After speaking for about nine of his fifteen minutes, Walls's standby counsel argued on his behalf for a standard range sentence. Walls's sentencing argument was more a legal argument than a plea for mercy. He ultimately apologized and expressed remorse to the Mayers, but only after the court had announced its exceptional sentence based in part on his lack of remorse.
Nonetheless, the right to allocute is statutory; RCW 9.94A.500(1) requires only that the court shall consider the defendant's `arguments.' And under Echeverria, this right is satisfied if the court gives the defendant the opportunity to allocute before imposing its sentence. Echeverria, 141 Wn.2d at 340. Here, Walls had the opportunity to address the court before it imposed his sentence; he chose to talk mostly about the sentencing legal issues. But he also addressed the equitable considerations in sentencing when he commented that he was the prosecutor's `personal project.' In short, the sentencing court is obligated to allow the defendant to speak before sentencing; it is not required to guide the defendant through the possible arguments in support of leniency. We conclude that Walls was not denied his right to allocute.
V. Exceptional Sentence
Our analysis also addresses Walls's personal restraint petition on this issue.
Walls argues that his exceptional sentence is excessive and that, in any event, he is now entitled to a jury trial on the exceptional sentence, citing Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403, reh'g denied, 125 S. Ct. 21 (2004).
In Blakely, the Court applied the rule of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Blakely, 124 S. Ct. at 2536. The `statutory maximum' for Apprendi purposes `is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.' Blakely, 124 S. Ct. at 2537. In other words, the `statutory maximum' is the sentence a judge may impose without any additional findings, not the maximum sentence he or she may impose after finding additional facts. Blakely, 124 S. Ct. at 2537.
Here, the court imposed an exceptional sentence because Walls's crimes were sophisticated, the victims were vulnerable, most of Walls's crimes involved dishonesty, Walls refused to accept responsibility, and Walls had a number of unscored misdemeanor convictions.
Under RCW 9.94A.535(2)(j), an aggravating factor exists if the `defendant's prior unscored misdemeanor . . . criminal history results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter.' We have recently held that where the trial court finds a standard range sentence too lenient because it leaves some current crimes unpunished, the aggravating factor is essentially a criminal history finding. State v. Van Buren, 123 Wn. App. 634, 645, 98 P.3d 1235, 1240-41 (2004). But the Supreme Court has overruled Van Buren; State v. Hughes, 2005 WL 851137 (Wash. Apr. 14, 2005); now the finding that a defendant's criminal history results in a too lenient standard range sentence must be made by a jury. Hughes, 2005 WL 851137, at *7. Hughes also held that the trial court lacks inherent authority to summon a jury to hear sentencing issues. But in response to Hughes, the legislature has amended the SRA to authorize jury proceedings in sentencing matters. SB 5477, 59th Leg., Reg. Sess. (Wash. 2005). Because the parties have not briefed the question whether the legislative amendments apply to cases pending on appeal, we vacate the sentence and remand for further proceedings.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
MORGAN, A.C.J. and HUNT, J., Concur.