IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, No. 74618-9-1 Respondent, DIVISION ONE V. UNPUBLISHED OPINION CYNTHIA SUE BARROWS,
Appellant. FILED: June 12, 2017
TRICKEY, A.C.J. — Cynthia Barrows appeals her judgment and sentence for multiple counts of theft. Although she was a first time offender, the trial court
refused to grant her request for a first time offender waiver(FTOW)because of the
amount of money she stole. Barrows argues that the trial court's denial of her
request amounted to a blanket denial of FTOWs for a class of offenders who would
otherwise be statutorily eligible. Because the record shows that the trial court
meaningfully considered Barrows' request before exercising its discretion to refuse
it, we affirm.
FACTS
Cynthia Barrows worked for Lyfebank, a company that helps employers set
up health care expense accounts for their employees. Generally, employees
submit their medical claims to Lyfebank. Once the expenses are approved, the
company transfers the funds from the employees' Lyfebank accounts to the
employees' personal accounts.
Barrows made false medical expense claims against client accounts, and
had the funds reimbursed to her personal accounts instead of to the clients' No. 74618-9-1/ 2
accounts. Over the course of a few years, Barrows stole from 80 different people,
making 93 transfers to her own account. She opened several accounts for the
sole purpose of depositing the stolen money. In total, she stole over $230,000.
Barrows pleaded guilty to eight counts of theft in the first degree and three
counts of theft in the second degree. Barrows had no prior criminal history.
At sentencing, she requested a FTOW. The State opposed the FTOW. The
court denied Barrows' request and imposed a standard range sentence for each
count. The court imposed 45 months of confinement for each count of first degree
theft and 29 months of confinement for each count of second degree theft, to run
concurrently.
Barrows appeals the trial court's denial of her request for a FTOW.
ANALYSIS
First Time Offender Waiver
Barrows argues that the trial court abused its discretion because it
categorically refused to consider FTOWs for defendants whose crimes involved
significant thefts. Because the record is clear that the trial court meaningfully
considered whether to grant Barrows' request for a FTOW, we disagree.
Generally, offenders may not appeal sentences within the standard range
for their offenses. RCW 9.94A.585(1). But "an offender may always challenge the
procedure by which a sentence was imposed." State v. Grayson, 154 Wn.2d 333,
338, 111 P.3d 1183 (2005). "[W]here a defendant has requested a sentencing
alternative authorized by statute, the categorical refusal to consider the sentence,
or the refusal to consider it for a class of offenders, is effectively a failure to
2 No. 74618-9-1 / 3
exercise discretion and is subject to reversal. Grayson, 154 Wn.2d at 342.
FTOWs are a type of sentencing alternative. The trial court may waive the
imposition of a standard range sentence for offenders who have never been
convicted of a felony and whose current conviction is not for a violent or sexual
offense, driving under the influence, or a crime related to drug dealing. RCW
9.94A.650(1), (2). Instead, the trial court imposes up to 90 days of confinement
and up to six months of community custody. RCW 9.94A.650(2),(3).
The trial court has broad discretion in deciding whether to grant an
offender's request for a FTOW. State v. Johnson,97 Wn. App.679,682,988 P.2d
460 (1999). The court abuses its discretion if "its decision is manifestly
unreasonable or is based upon untenable grounds or reasons." State v. Adamy,
151 Wn. App. 583, 587, 213 P.3d 627(2009).
Here, Barrows received a standard range sentence after requesting a
FTOW. The State strongly opposed the FTOW and made several arguments
against granting Barrows' request. The State pointed out that there had been
similar cases recently in which the court sentenced the defendant to 36 months
and 30 months. The State contended that it would be inappropriate to give
someone who stole close to a quarter of a million dollars "a slap on the wrist."'
Barrows argued that she was an ideal candidate for a FTOW, despite the
"very high" amount of money she stole, because she pleaded guilty instead of
making all her victims come to court and testify and, if the court kept her in the
community, she could continue to work with her counselor, hold a job, and make
I Report of Proceedings(RP)(Dec. 16, 2015) at 4. 3 No. 74618-9-1 /4
progress on paying restitution.2, Barrows addressed the court to express her
remorse and echo her counsel's arguments.
The court and the State acknowledged that the court had discretion whether
to grant a FTOW. The State argued it was "not appropriate under these facts."3
After listening to both sides and Barrows herself, the court announced its
decision. The court noted first that it would "probably be better" for Barrows to stay
in the community, and that she had a better chance of paying restitution if she
stayed in the community.4 But it also explained that it had "an obligation" to treat
the cases that came before it consistently, that Barrows' case involved "a very,
very large amount of theft and/or embezzlement," and that it wanted to send a
"message to the community" that when people "engage in this kind of conduct over
this period of time with this amount of dollars, the consequences are going to be
very severe."5
Summing up its decision, the court said that if "this were $3,000," it would
have "strongly consider[ed] a first offender waiver. But at 2- to $300,000," it could
not "in good conscience consider that alternative" at that time.6
The trial court's statements indicate that it thought carefully about Barrows'
particular situation, weighed the benefits and disadvantages of granting her
request, and finally determined that a standard range sentence was more
appropriate than a FTOW because of the seriousness of the offense. Its decision
2 RP (Dec. 16, 2015) at 6. 3 RP (Dec. 16, 2015) at 8. 4 RP (Dec. 16, 2015) at 11. 5 RP (Dec. 16, 2015) at 11. 6 RP (Dec. 16, 2015) at 11.
4 No. 74618-9-I /5
was clearly an exercise of discretion. The seriousness of the offense is a tenable
basis for rejecting Barrows' request. Therefore, the court did not abuse its
discretion.
Barrows argues that, by refusing to consider a FTOW for any offender
convicted of stealing or embezzling a large amount, the trial court impermissibly
determined whether to grant a FTWO based on "an arbitrary line."7 We reject this
argument because Barrows mischaracterizes the trial court's decision and
decision-making process. The trial court specifically said that it could not consider
the alternative at that time. It did not state or suggest it would never consider a
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, No. 74618-9-1 Respondent, DIVISION ONE V. UNPUBLISHED OPINION CYNTHIA SUE BARROWS,
Appellant. FILED: June 12, 2017
TRICKEY, A.C.J. — Cynthia Barrows appeals her judgment and sentence for multiple counts of theft. Although she was a first time offender, the trial court
refused to grant her request for a first time offender waiver(FTOW)because of the
amount of money she stole. Barrows argues that the trial court's denial of her
request amounted to a blanket denial of FTOWs for a class of offenders who would
otherwise be statutorily eligible. Because the record shows that the trial court
meaningfully considered Barrows' request before exercising its discretion to refuse
it, we affirm.
FACTS
Cynthia Barrows worked for Lyfebank, a company that helps employers set
up health care expense accounts for their employees. Generally, employees
submit their medical claims to Lyfebank. Once the expenses are approved, the
company transfers the funds from the employees' Lyfebank accounts to the
employees' personal accounts.
Barrows made false medical expense claims against client accounts, and
had the funds reimbursed to her personal accounts instead of to the clients' No. 74618-9-1/ 2
accounts. Over the course of a few years, Barrows stole from 80 different people,
making 93 transfers to her own account. She opened several accounts for the
sole purpose of depositing the stolen money. In total, she stole over $230,000.
Barrows pleaded guilty to eight counts of theft in the first degree and three
counts of theft in the second degree. Barrows had no prior criminal history.
At sentencing, she requested a FTOW. The State opposed the FTOW. The
court denied Barrows' request and imposed a standard range sentence for each
count. The court imposed 45 months of confinement for each count of first degree
theft and 29 months of confinement for each count of second degree theft, to run
concurrently.
Barrows appeals the trial court's denial of her request for a FTOW.
ANALYSIS
First Time Offender Waiver
Barrows argues that the trial court abused its discretion because it
categorically refused to consider FTOWs for defendants whose crimes involved
significant thefts. Because the record is clear that the trial court meaningfully
considered whether to grant Barrows' request for a FTOW, we disagree.
Generally, offenders may not appeal sentences within the standard range
for their offenses. RCW 9.94A.585(1). But "an offender may always challenge the
procedure by which a sentence was imposed." State v. Grayson, 154 Wn.2d 333,
338, 111 P.3d 1183 (2005). "[W]here a defendant has requested a sentencing
alternative authorized by statute, the categorical refusal to consider the sentence,
or the refusal to consider it for a class of offenders, is effectively a failure to
2 No. 74618-9-1 / 3
exercise discretion and is subject to reversal. Grayson, 154 Wn.2d at 342.
FTOWs are a type of sentencing alternative. The trial court may waive the
imposition of a standard range sentence for offenders who have never been
convicted of a felony and whose current conviction is not for a violent or sexual
offense, driving under the influence, or a crime related to drug dealing. RCW
9.94A.650(1), (2). Instead, the trial court imposes up to 90 days of confinement
and up to six months of community custody. RCW 9.94A.650(2),(3).
The trial court has broad discretion in deciding whether to grant an
offender's request for a FTOW. State v. Johnson,97 Wn. App.679,682,988 P.2d
460 (1999). The court abuses its discretion if "its decision is manifestly
unreasonable or is based upon untenable grounds or reasons." State v. Adamy,
151 Wn. App. 583, 587, 213 P.3d 627(2009).
Here, Barrows received a standard range sentence after requesting a
FTOW. The State strongly opposed the FTOW and made several arguments
against granting Barrows' request. The State pointed out that there had been
similar cases recently in which the court sentenced the defendant to 36 months
and 30 months. The State contended that it would be inappropriate to give
someone who stole close to a quarter of a million dollars "a slap on the wrist."'
Barrows argued that she was an ideal candidate for a FTOW, despite the
"very high" amount of money she stole, because she pleaded guilty instead of
making all her victims come to court and testify and, if the court kept her in the
community, she could continue to work with her counselor, hold a job, and make
I Report of Proceedings(RP)(Dec. 16, 2015) at 4. 3 No. 74618-9-1 /4
progress on paying restitution.2, Barrows addressed the court to express her
remorse and echo her counsel's arguments.
The court and the State acknowledged that the court had discretion whether
to grant a FTOW. The State argued it was "not appropriate under these facts."3
After listening to both sides and Barrows herself, the court announced its
decision. The court noted first that it would "probably be better" for Barrows to stay
in the community, and that she had a better chance of paying restitution if she
stayed in the community.4 But it also explained that it had "an obligation" to treat
the cases that came before it consistently, that Barrows' case involved "a very,
very large amount of theft and/or embezzlement," and that it wanted to send a
"message to the community" that when people "engage in this kind of conduct over
this period of time with this amount of dollars, the consequences are going to be
very severe."5
Summing up its decision, the court said that if "this were $3,000," it would
have "strongly consider[ed] a first offender waiver. But at 2- to $300,000," it could
not "in good conscience consider that alternative" at that time.6
The trial court's statements indicate that it thought carefully about Barrows'
particular situation, weighed the benefits and disadvantages of granting her
request, and finally determined that a standard range sentence was more
appropriate than a FTOW because of the seriousness of the offense. Its decision
2 RP (Dec. 16, 2015) at 6. 3 RP (Dec. 16, 2015) at 8. 4 RP (Dec. 16, 2015) at 11. 5 RP (Dec. 16, 2015) at 11. 6 RP (Dec. 16, 2015) at 11.
4 No. 74618-9-I /5
was clearly an exercise of discretion. The seriousness of the offense is a tenable
basis for rejecting Barrows' request. Therefore, the court did not abuse its
discretion.
Barrows argues that, by refusing to consider a FTOW for any offender
convicted of stealing or embezzling a large amount, the trial court impermissibly
determined whether to grant a FTWO based on "an arbitrary line."7 We reject this
argument because Barrows mischaracterizes the trial court's decision and
decision-making process. The trial court specifically said that it could not consider
the alternative at that time. It did not state or suggest it would never consider a
FTOW for any offender who had stolen as much as Barrows.
Appellate Costs
Barrows also asks that no costs be awarded on appeal. Appellate costs are
generally awarded to the substantially prevailing party on review. But, when a trial
court makes a finding of indigency, that finding remains throughout review "unless
the commissioner or clerk determines by a preponderance of the evidence that the
offender's financial circumstances have significantly improved since the last
determination of indigency." RAP 14.2.
Here, the trial court found that Barrows was unable to pay the expenses of
her appellate review because of poverty or indigency. If the State has evidence
indicating that Barrows' financial circumstances have significantly improved since
the trial court's determination, it may file a motion for costs with the commissioner.
7 Br. of Appellant at 5. 5 No. 74618-9-1/6
Affirmed.
4kr
WE CONCUR: