State v. Oxborrow

723 P.2d 1123, 106 Wash. 2d 525, 1986 Wash. LEXIS 1240

• Court: Washington Supreme Court
• Decided: August 14, 1986
• Docket: 51339-2
• Status: Published

Opinions

Durham, J.

Kenneth D. Oxborrow challenges the trial court's imposition of consecutive 10- and 5-year prison terms under the Sentencing Reform Act of 1981 (the SRA), RCW 9.94A, for the crimes of first degree theft and violation of a cease and desist order in connection with the sale of securities. Oxborrow was sentenced for activities related to a pyramid scheme in which he defrauded investors of over $58 million. Oxborrow claims that the sentences imposed are clearly excessive, that the trial court lacked authority to impose consecutive sentences, and that the trial court relied on impermissible evidence at the sentencing hearing. We affirm the sentences of the trial court on all counts.

I

In 1979, Oxborrow and allegedly two other persons started an investment business under the name Wheatland Investment Company. Oxborrow represented to potential investors that he would place their moneys into the commodities and futures markets and promised a return of approximately 2 percent per week on their investments. As Oxborrow attracted more and more investors, he began to pay off prior investors with the money obtained from newer investors, creating an elaborate pyramid scheme. In all, Oxborrow obtained over $58 million, of which only $45 million was returned to the investors.

At most, Oxborrow placed only 10 percent of his investors' moneys into the commodities and futures markets. He appropriated a large portion of the remainder to satisfy his own extravagant tastes. During this period, he purchased two Rolls-Royce automobiles, a Cadillac limousine, several airplanes and an oceanside resort cabin worth several hundred thousand dollars. He decorated his office and home with fine leather furniture, expensive antiques and imported Chinese rugs. Other portions of his investors' moneys were used to cover past debts and to finance his own private business ventures.

Oxborrow's scheme attracted between 900 and 1,200 unsuspecting investors. They were drawn from a vast geographical base, including at least 15 counties in Washington, as well as parts of California, Idaho, Montana and Oregon. While some of the early investors made a profit, the majority lost money, and individual losses ranged as high as $2.4 million. Over 500 investors lost everything they had invested. Oxborrow's victims included pensioners, the elderly and the blind. He allegedly gained the confidence of some investors by making a show of his own supposedly ethical and honest behavior; large pictures of Jesus and other Christian items were on prominent display throughout his home and office.

On August 2, 1984, Oxborrow was served with a cease and desist order which directed him to stop selling or offering for sale any unregistered securities. This order was aimed at Oxborrow's investment scheme. Oxborrow ignored the order and ultimately accepted an additional $1 million from various investors. However, near the end of August, when he saw that he would be unable to pay back all his investors, he approached an attorney for advice. His attorney contacted the prosecuting attorneys for both the United States and Grant County to discuss Oxborrow's investment scheme and soon commenced plea bargaining. For ease of prosecution, the Grant County Prosecuting Attorney was designated to represent the combined interests of prosecutors from the 15 affected Washington counties.

On October 31, 1984, Oxborrow pleaded guilty to theft in the first degree, RCW 9A.56.020(l)(a), and to willful violation of a cease and desist order concerning the sale of securities, RCW 21.20.390, by defrauding approximately 51 investors of over $1 million subsequent to July 1, 1984.¹ Under the SRA, the presumptive sentence ranges for these crimes are 0 to 90 days and 0 to 12 months respectively, since Oxborrow had no previous criminal history. RCW 9.94A.120(6), 9.94A.320. The statutory maximum sentences are 10 years in each case. RCW 9A.20.020(l)(b), 9A.56-.030(2), 21.20.400. The Grant County Prosecutor recommended that Oxborrow serve concurrent 10- and 5-year sentences for the two crimes, for a total term of 10 years. Instead, the trial court sentenced Oxborrow to consecutive 10- and 5-year sentences for a total term of 15 years.

Oxborrow appeals these sentences, claiming that they are "clearly excessive" under the SRA, and that the trial court had no authority to impose consecutive sentences under the SRA. Finally, Oxborrow claims that the trial court violated the SRA and denied him his constitutional right to due process of law by considering impermissible evidence both prior to and during his sentencing hearing. We deal with each of these contentions in turn.

II

The Sentencing Reform Act of 1981 created presumptive sentencing ranges for most felonies based on the seriousness of the crime and the offender's criminal history. RCW 9.94A.320-.360. The sentencing court may impose any sentence within the presumptive range that it deems appropriate. RCW 9.94A.370. However, the court may also impose a sentence outside the range (an exceptional sentence) if it finds, "considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence." RCW 9.94A.120(2). The SRA provides a nonexclusive list of aggravating and mitigating factors which the sentencing court may consider in imposing an exceptional sentence. RCW 9.94A.390.

Either the defendant or the State may appeal an exceptional sentence. RCW 9.94A.210(2). The appellate court is to review the sentence as set out in RCW 9.94A.210(4):

To reverse a sentence which is outside the sentence range, the reviewing court must find: (a) Either that the reasons supplied by the sentencing judge are not supported by the record which was before the judge or that those reasons do not justify a sentence outside the standard range for that offense; or (b) that the sentence imposed was clearly excessive or clearly too lenient.

(Italics ours.) The pertinent provision of RCW 9.94A.210(4) is subsection (b).² As Oxborrow readily admits, the trial court's reasons for going outside the standard range are supported by the record and these reasons also unquestionably justify the imposition of an exceptional sentence; thus, subsection (a) is inapplicable. The issue here is if the duration of Oxborrow's exceptional sentence was justified, or, as Oxborrow argues, was "clearly excessive".

The SRA does not define the term "clearly excessive" nor otherwise explicitly indicate the standard of review to be used in determining if a particular sentence is "clearly excessive". However, three important sources — the language of the SRA itself, the express recommendations of the Sentencing Guidelines Commission, and the Washington courts' previous interpretation of identical language in the juvenile justice act — clearly indicate that the sentencing court's decision regarding length of an exceptional sentence should not be reversed as "clearly excessive" absent an abuse of discretion. We hereby adopt that standard of review.

First, RCW 9.94A.010 provides in pertinent part:

The purpose of [the SRA] 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 . . .

(Italics ours.) The SRA provides for structured decisions by requiring that any exceptional sentence be based on "substantial and compelling reasons" which justify going outside the standard range. RCW 9.94A.120(2), 9.94A.210(4)(a). Once this requirement has been met, however, the sentencing court is permitted to use its discretion to determine the precise length of the exceptional sentence. RCW 9.94A.390 provides a nonexclusive list of factors "which the court may consider in the exercise of its discretion to impose an exceptional sentence". (Italics ours.) The drafters of the statute recognized that "not all exceptional fact patterns can be anticipated", Washington Sentencing Guidelines Comm'n, Implementation Manual § 9.94A.390, Comment (1984), and that the sentencing court must be permitted to tailor the sentence to the facts of each particular case.

Second, the Sentencing Guidelines Commission, created by the Legislature in 1981 to develop the new sentencing standards, left no doubt as to standard of review it felt appropriate for determining when an exceptional sentence was clearly excessive:

If the court sentences outside the standard range, it shall set forth its justification for doing so in written findings and conclusions, and any sentence outside the standard range shall be subject to review only for abuse of discretion.

(Italics ours.) Washington Sentencing Guidelines Comm'n, Report to the Legislature 51 (Jan. 1983).

Third, the Washington courts have considered similar language in construing the Juvenile Justice Act of 1977. That act, like the Sentencing Reform Act of 1981, provides that sentences may be reversed if they are "clearly excessive". RCW 13.40.230(2) (b). In State v. Strong, 23 Wn. App. 789, 794, 599 P.2d 20 (1979), the court stated:

The term "clearly excessive" is not defined in the Juvenile Justice Act of 1977 and, therefore, must be given its plain and ordinary meaning. Action is excessive if it "goes beyond the usual, reasonable, or lawful limit." Thus, for action to be clearly excessive, it must be shown to be clearly unreasonable, i.e., exercised on untenable grounds or for untenable reasons, or an action that no reasonable person would have taken.

(Citations omitted.) We hold that a similar interpretation is to be given the words "clearly excessive" in the SRA.

In passing, we note that Oxborrow has urged this court to adopt the so-called "Minnesota rule", which generally limits exceptional sentences to no more than twice the presumptive sentence range. We decline to do so for several reasons. First, there is no statutory authority for applying such a rule, and no indication that the Legislature intended to impose this arbitrary limit on exceptional sentences. Second, if this rule were strictly applied in the present case, Oxborrow could be sentenced to no more than 180 days for the first degree theft charge, a grossly inappropriate punishment given the facts of the case. Finally, even the Minnesota courts have had difficulty in applying the "doubling rule". A number of cases have failed to strictly abide by the rule and have allowed greater sentences upon a finding of "severe" aggravating circumstances. See State v. Norton, 328 N.W.2d 142 (Minn. 1982); State v. Ming Sen Shiue, 326 N.W.2d 648 (Minn. 1982); State v. Herberg, 324 N.W.2d 346 (Minn. 1982). The court in State v. Norton, supra at 146, elaborated on the difficulties with the doubling rule:

The decision which we must make is whether this is one of the extremely rare cases in which more than a double durational departure is justified. There is no easy-to-apply test to use in making this decision, and there is no clear line that marks the boundary between "aggravating circumstances" justifying a double departure and "severe aggravating circumstances" justifying a greater than double departure.

See State v. Stalker, 42 Wn. App. 1, 4-5, 707 P.2d 1371 (1985). In Stalker, at 5, the Court of Appeals rejected the doubling rule and noted the following problems:

Given Minnesota's own uncertainty in applying its newly articulated rule, our adoption of such a rule would not provide definitive guidance to the superior courts when imposing sentences outside the standard range. At best, the doubling rule could open a new area of uncertainty as to when a sentence greater than twice the standard range would be justified. The same confusion could result if the court reduced the sentence below the standard range. The concept of an undefined range between the maximum sentence available [by statute] and the presumptive sentencing range . . . was intended to allow the judge some degree of discretion in tailoring the sentence to the person and the crime before him. The adoption of any fixed restriction on the discretion of the sentencing judge is better left to the Legislature.

(Citation omitted.) We agree with this observation.

Applying the abuse of discretion standard to the facts of this case, we conclude that Oxborrow's sentence is not clearly excessive. Former RCW 9.94A.390 provides a list of aggravating factors that the sentencing court may consider when imposing an exceptional sentence:

Aggravating Circumstances

(3) The offense was a major economic offense or series of offenses, so identified by a consideration of any of the following factors:

(a) The offense involved multiple victims or multiple incidents per victim;

(b) The offense involved attempted or actual monetary loss substantially greater than typical for the offense;

(c) The offense involved a high degree of sophistication or planning or occurred over a lengthy period of time;

(d) The defendant used his or her position of trust, confidence, or fiduciary responsibility to facilitate the commission of the offense.

Oxborrow's crimes fulfill all of the listed criteria for a "major economic offense". Considering only his activities subsequent to July 1, 1984, he defrauded at least 50 investors of over $1 million by the use of a highly sophisticated pyramid scheme in which he grossly abused his position of trust, confidence and fiduciary responsibility. Clearly the trial court was justified in relying on these aggravating factors.

The maximum statutory sentences for the crimes of violating a cease and desist order concerning the sale of securities and first degree theft are 10 years in each case. In addition to the 5-year sentence for the former crime, the trial court sentenced Oxborrow to the maximum, 10 years, on the theft charge. But this was no ordinary theft. RCW 9A.56.030(l)(a) provides that a person may be convicted of first degree theft for taking as little as $1,500; Oxborrow, subsequent to July 1, 1984, perpetrated a fraud involving more than a million dollars. Surely this is the quintessential crime for which the Legislature contemplated a maximum sentence. We find no abuse of discretion.

Ill

Oxborrow next contends that the trial court exceeded its authority under the SRA by imposing consecutive, rather than concurrent, 10- and 5-year sentences. He further claims that even if the consecutive sentences are not illegal per se, the length of the consecutive sentences may not exceed the presumptive sentence ranges for his crimes. We disagree.

RCW 9.94A.400(l)(a) and (b) allow for consecutive sentences only for persons convicted of "three or more serious violent offenses [defined in RCW 9.94A.330 to include only first and second degree murder, first degree assault, kidnapping, and rape] arising from separate and distinct criminal conduct ..." In all other instances, the sentences are to be concurrent. Oxborrow's crimes admittedly do not meet the requirements of RCW 9.94A.400 for consecutive sentences.

However, former RCW 9.94A.390(4)(h) lists as an "aggravating circumstance" the possibility that:

The operation of the multiple offense policy of RCW 9.94A.400 results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter

The Legislature thus recognized that the limitations on consecutive sentences in RCW 9.94A.400 might be inappropriate in exceptional cases. Here, the trial court was justified in finding that Oxborrow's presumptive sentence under RCW 9.94A.400 — concurrent terms of 0 to 12 months and 0 to 90 days — would be "clearly too lenient", and that an exceptional sentence should be imposed.

Oxborrow contends that RCW 9.94A.390(4)(h) is an aggravating circumstance applicable only to cases involving the Uniform Controlled Substances Act rather than an aggravating circumstance applicable to all cases. This argument is without merit, as the comment to RCW 9.94A.390 clearly indicates:

There was also concern that the multiple offense policy might sometimes result in a presumptive sentence that is clearly too lenient in light of the purposes of this chapter. An illustrative aggravating factor was inadvertently codified by the Code Revisor as part of the aggravating factors for drug offenses, rather than as a separate factor. (It is listed as "4(h)" rather than "5".) Both the Commission and the legislature intended for this example of an aggravating factor to apply to any crime, not just for violations of the Uniform Controlled Substances Act... As these are all illustrative factors only, the intent of the Legislature should control over such scrivener's error.

Washington Sentencing Guidelines Comm'n, Implementation Manual § 9.94A.390, Comment (1984).

We next turn to RCW 9.94A.120(13), which provides:

A departure from the standards in RCW 9.94A.400(1) and (2) governing whether sentences are to be served consecutively or concurrently is an exceptional sentence subject to the limitations in subsections (2) and (3) of this section, and may be appealed by the defendant or the state as set forth in RCW 9.94A.210(2) through (6).

The sentencing court thus may impose consecutive sentences even if RCW 9.94A.400 does not so provide, but in such a case, the sentencing court must provide "substantial and compelling reasons" for its decision, set forth in written findings of fact and conclusions of law. RCW 9.94A.120(2), (3). There is no requirement that the length of the consecutive sentences not exceed the presumptive range; rather, when the consecutive sentences result in a total term exceeding the presumptive range, the defendant may appeal this sentence in the same way he would appeal any sentence outside the presumptive range.

Here, Oxborrow's presumptive sentence range was 0 to 12 months (using the longer of his two presumptive sentence ranges for first degree theft and violation of the cease and desist order), and his consecutive sentences total 15 years. This brings him within RCW 9.94A.210(4) which mandates reversal of the sentencing court's decision if (a) the reasons given by the sentencing judge do not justify a sentence outside the presumptive range, or (b) the total sentence is clearly excessive. As earlier indicated, Oxborrow does not challenge the adequacy of the trial court's reasons for imposing an exceptional sentence, but claims only that the sentence is "clearly excessive".

Thus, we apply the abuse of discretion test to Oxborrow's claim. Although the trial court did not make a separate listing of factors to justify both its decision to sentence Oxborrow to a term beyond the presumptive range on each of the two counts and to make those terms run consecutively, the same factors would apply to each decision. Oxborrow could have been sentenced to consecutive 10-year terms, a total of 20 years, for his crimes; the trial court chose instead to impose a total term of 15 years. We hold that the trial court acted within its authority in imposing consecutive sentences and did not abuse its discretion in so doing.

IV

Oxborrow contends that the trial court erred by admitting the testimony of three witnesses at his sentencing hearing and by including certain letters in the sentencing record. Oxborrow also claims that the trial court impermis-sibly looked beyond the charges to which he pleaded guilty in determining his sentence. We hold that Oxborrow has suffered, at most, harmless error from these alleged transgressions.

Oxborrow first objects to the trial court's decision to admit the testimony of Irene Ivory, Richard Park and John Maxwell at his sentencing hearing. Ivory and Park were listed as victims in the pre-SRA charges of securities fraud and first degree theft to which Oxborrow pleaded guilty. Maxwell headed the Enforcement Division of the Securities Division, Department of Licensing for the State of Washington, and had investigated Oxborrow's pyramid operation on behalf of the State. ROW 9.94A.110 permits the trial court to consider the testimony of both victims and an investigative law enforcement officer at the sentencing hearing. However, the prosecutor failed to give Oxborrow 3 days' notice that he would call these witnesses to testify. Oxborrow claims that this constituted a violation of Superior Court Criminal Rule 7.1(c). He further contends that the trial court, by admitting the testimony of the three witnesses, unconstitutionally denied him due process of law.

CrR 7.1(c) provides:

At least 3 days before the sentencing hearing, defense counsel and the prosecuting attorney shall notify opposing counsel and the court of any part of the presentence report that will be controverted by the production of evidence.

Having examined the testimony of the three witnesses, we conclude that none of the testimony "controverts" the pre-sentence reports; indeed, Oxborrow fails to point to any portion of the presentence reports that was supposedly controverted by the new testimony. However, we fail to see how Oxborrow has been prejudiced in any event. The testimony of Ivory, Park and Maxwell merely elaborates upon aspects of Oxborrow's conduct that are amply documented in both the presentence reports and the charges to which he pleaded guilty. The trial judge recognized as much, for he stated that the testimony at the sentencing hearing did not affect his decision as to Oxborrow's sentence.

Oxborrow next objects to the trial court's inclusion of certain letters in the sentencing record. Following Oxbor-row's sentencing hearing in United States District Court, at which he received a 4-year sentence on federal charges (see footnote 1), the trial court in the present case received letters from both investors and members of the general public urging that a stiffer sentence be imposed for Oxborrow's state crimes. Some of these letters arrived too late to be included in the presentence reports. Oxborrow claims that he was entitled under RCW 9.94A.370 to an evidentiary hearing to challenge any alleged material facts in the letters, and that the trial court's consideration of the letters absent such a hearing denied him due process of law.

Again, even if we were to agree that Oxborrow was entitled to an evidentiary hearing concerning the letters, we find that any possible error in this respect is harmless beyond a reasonable doubt. The record contains, in addition to the letters critical of Oxborrow, many other letters written on his behalf. The trial judge stated that he considered all points of view, including the favorable letters, before sentencing Oxborrow. Moreover, it is clear that the trial judge did not rely on the letters to which Oxborrow objects for any material factual allegations found therein, but rather drew upon the presentence reports and the pleadings as the source of his factual findings. Oxborrow was not prejudiced by the trial court's consideration of the letters in question.

Finally, Oxborrow argues that the trial court impermissi-bly looked beyond the charges to which he pleaded guilty in determining his sentence for his post-SRA crimes. In essence, he points out that his crimes subsequent to July 1, 1984 involved "only" the taking of $1 million from over 50 investors, even though the entire pyramid scheme, as revealed in the presentence reports, involved over $58 million. We conclude that the trial judge was justified in considering the additional information contained in the presentence reports since Oxborrow did not object to this information at the time of sentencing. RCW 9.94A.370 provides, in pertinent part:

In determining any sentence, the trial court may use no more information than is admitted by the plea agreement, and admitted to or acknowledged at the time of sentencing. Acknowledgment includes not objecting to information stated in the presentence reports.

(Italics ours.) In any event, we fail to see how Oxborrow's post-SRA sentence would be clearly excessive even if his crimes were viewed as a "mere" $1 million fraud, since this greatly exceeds the $1,500 minimum requirement for a first degree theft conviction. The trial court acted within its authority in imposing consecutive 10- and 5-year terms for Oxborrow's post-SRA crimes.

The sentences of the trial court are affirmed.

Dolliver, C.J., and Callow, J., concur.

Dore, J., concurs in the result.

1 In the plea bargaining arrangement, Oxborrow also pleaded guilty to four federal crimes: (1) fraud by commodity pool operator, 7 U.S.C. §§ 6o(l), 13(b); (2) fraud in sales of securities, 15 U.S.C. §§ 77q(a), 77x; (3) mail fraud, 18 U.S.C. § 1341; and (4) conspiracy, 18 U.S.C. § 371. He received a 4-year sentence for these crimes. Oxborrow is not appealing this sentence.

Oxborrow further pleaded guilty to (1) theft in the first degree, RCW 9A.56-.020(l)(a), 9A.56.030(l)(a); and (2) fraud in the sale of securities, RCW 21.20.010, for wrongfully depriving and defrauding "hundreds" of investors of "millions" of dollars between January 1, 1982, and June 30, 1984. The sentences for these crimes are not governed by the SRA. The trial court sentenced Oxborrow to two consecutive 10-year probationary terms for these crimes, which are to run concurrently with the sentences for Oxborrow's post-SRA crimes. Oxborrow is not appealing these sentences.

2 An analysis of subsection (a) can be found in State v. Nordby, 106 Wn.2d 514, 517, 723 P.2d 1117 (1986) and State v. Armstrong, 106 Wn.2d 547, 549, 723 P.2d 1111 (1986), filed simultaneously with this opinion.