State Of Washington v. Douglas Ross White ( 2017 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON (i)cD
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STATE OF WASHINGTON, rn
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Respondent,
V. DIVISION ONE (pr."
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DOUGLAS ROSS WHITE, UNPUBLISHED OPINION
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Appellant. FILED: July 31, 2017
LEACH, J. — Douglas White appeals the restitution the trial court ordered him to
pay after he pleaded guilty to 28 counts of second degree identity theft and 27 counts of
mortgage fraud. White challenges the sufficiency of the evidence to support the
restitution order and claims that a jury should have decided the amount of restitution. He
also contends that his convictions for mortgage fraud charged in counts 45 to 55 should
be set aside because the State charged these crimes after the statute of limitations period
for them had expired.
Because sufficient evidence supports the restitution order and White was not
entitled to a jury trial on restitution, we affirm the restitution order. And because White
fails to identify any evidence that the statute of limitations expired, we affirm the judgment
and sentence.
Background
Washington State licensed Tom Reed to perform residential appraisals. Reed did
business as Washington Appraisal Reviews Inc. and signed his appraisal reports by an
electronic "signature." Reed hired White to perform appraisals as a trainee. White would
accompany Reed on home appraisals and then put the appraisals together for Reed's
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review. White took the appraiser licensing exam twice during his time at Washington
Appraisal and failed each time. White worked closely with Reed for several years. He
misused his trust as Reed's mentee to obtain Reed's electronic signature and certified
residential appraiser license number. During the 2008 economic downturn, Reed laid off
his employees.
White, doing business as Washington Real Estate Services Inc., performed
appraisals. He used Reed's electronic signature and license number on the appraisal
reports submitted to the client and companies. White's compensation for these appraisal
reports ranged from $400 to $800.
White pleaded guilty to second degree identity theft and mortgage fraud as
charged in the amended information. White entered a straight plea without a stipulation
to real facts. In his statement on the plea of guilty, White admitted to using Reed's
electronic signature and his appraiser's license number on appraisals he performed.
White performed those appraisals on properties with the intent to mislead lenders and
borrowers into thinking that Tom Reed completed the appraisals. His guilty plea
recognized that he committed the crimes over a multiyear period between May 16, 2007,
and August 30, 2012.
After sentencing, the court held a restitution hearing. The sentencing court ordered
White to repay several individuals who had paid him for appraisals believing he was the
licensed Tom Reed and to repay Reed the monies White received from the appraisals
performed under Reed's name.
White timely appeals.
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Analysis
White challenges the sufficiency of the evidence to support the restitution order
and claims that a jury should have determined the amount of restitution. White also
argues that several of his convictions should be vacated because they were barred by
the statute of limitations. White also filed a statement of additional grounds for review,
claiming ineffective assistance of trial counsel and an improper relationship between the
prosecutor and the judge.
Restitution
Statutes provide a trial court's only authority to order restitution.' These statutes
give courts broad discretion when determining the amount of restitution.2 The trial court
abuses its discretion if its restitution order is manifestly unreasonable or the court
exercised its discretion on untenable grounds or for untenable reasons.3
A court must order restitution when "the offender is convicted of an offense which
results in injury to any person or damage to or loss of property." The court must base its
order "on easily ascertainable damages for injury to or loss of property, actual expenses
incurred for treatment for injury to persons, and lost wages resulting from injury."5
A court can order restitution only for losses that are causally connected to the
crimes charged unless the defendant expressly agrees to pay restitution for crimes for
which he was not convicted.6
State v. Smith, 119 Wn.2d 385, 389, 831 P.2d 1082(1992).
2 State v. Kinneman, 155 Wn.2d 272, 282,119 P.3d 350 (2005).
3 State v. Enstone, 137 Wn.2d 675, 679-80, 974 P.2d 828 (1999).
4 RCW 9.94A.753(5).
5 RCW 9.94A.753(3).
6 State v. Griffith, 164 Wn.2d. 960, 965-66, 195 P.3d 506 (2008).
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The sentencing court ordered White to repay 10 of the victims who had paid for an
appraisal that was essentially worthless because it was not performed by a licensed
appraiser. Because these individuals each obtained refinancing or a mortgage for their
property, White claims they suffered no loss. He notes the lack of any evidence that these
appraisals were inaccurate. We find no merit to this argument. The individuals did not
receive what they purchased, a certified appraisal report. Thus, their loss is causally
related to White's crime.
The sentencing court also ordered White to pay Reed the monies he received for
each of the appraisals White performed using Reed's license. White claims that the
record contains no evidence that these customers would have hired Reed. In its oral
ruling, the sentencing court explained the connection between the appraisals and Mr.
Reed's entitlement to the payment from them:
Every one of those appraisals purportedly was sent to Mr. Reed. On the
face of them,they were appraisals that were going to be done by Mr. Reed's
firm. To me, that sort of makes the nexus right there. An argument could
be made, well, if Mr. White wasn't involved, would Mr. Reed have gotten the
appraisals anyway? I don't know, but that's not what happened. What
happened was those appraisals were going to be done by Mr. White, who
was purportedly affiliated with Mr. Reed.
The sentencing court also considered whether this would be double dipping but
noted that the restitution statute authorized the court to impose up to twice the
victim's loss or the offender's gain.7 Because White was enriched by the amount
paid by each individual, paying that amount to Reed falls within the statutory
7 RCW 9.94A.753(3); see Kinneman, 155 Wn.2d at 285 (evidence supporting
restitution sufficient if it affords a reasonable basis for estimating loss and does not subject
the trier of fact to mere speculation or conjecture).
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parameters even though White might pay the same amount to some individuals
who submitted claims.
Our courts have recognized that restitution statutes are "intended to require
the defendant to face the consequences of his or her criminal conduct."8 The trial
court did not abuse its discretion in awarding restitution.
Jury Trial
White contends that the Sixth Amendment to the United States Constitution and
article 1, section 21 of the Washington State Constitution each entitles a defendant to
have a jury decide the amount of restitution. The Washington Supreme Court rejected
this argument in State v. Kinneman.8
White argues that Southern Union Co. v. United States1° and Alleyne v. United
States" have eroded Kinneman's holding. Southern Union extended the holding in
Apprendi v. New Jersey12 to criminal fines, concluding that there was "no principled basis
under Apprendi for treating criminal fines differently" than sentences of imprisonment or
death.13
White's reliance on Southern Union is misplaced because the decision merely
reemphasized Apprendi's holding that if a court uses a factual finding to elevate a
sentence above the statutory maximum, due process requires proof of that fact beyond a
8 State v. Tobin, 161 Wn.2d 517, 524, 166 P.3d 1167 (2007) (citing State v.
Davison, 116 Wn.2d 917, 922, 809 P.2d 1374 (1991)).
9 155 Wn.2d 272, 282, 119 P.3d 350 (2005).
10 567 U.S. 343, 132 S. Ct. 2344, 183 L. Ed. 2d 318(2012).
11 U.S. , 133 S. Ct. 2151, 186 L. Ed. 2d 314(2013).
12 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435(2000).
13 S. Union, 567 U.S. at 349.
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reasonable doubt.14 No statute caps the dollar amount of restitution a Washington court
can order, subject to the requirement that the court base any restitution on the damages
caused by a defendant's course of conduct. Apprendi remains inapplicable to
Washington's restitution scheme.
Nor does Allevne help White. There, the United States Supreme Court extended
Apprendi to facts necessary to impose minimum punishment, not just maximum
punishment.15 Washington's restitution statute does not require a minimum amount.
Kinneman remains controlling on this issue.
Statute of Limitations
White claims the court should vacate his convictions on counts 45-55. The State
added these counts with an amended information filed February 20, 2015. The counts
all involve mortgage fraud acts that occurred between June 12, 2008, and June 19, 2009.
RCW 19.144.090(2)states that Inio information may be returned more than (a)five years
after the violation, or (b) three years after the actual discovery of the violation, whichever
date of limitation is later." The incidents all occurred more than five years before the State
filed the amended information. But the statute allows the State to file an information within
three years after actual discovery of the violation.
White claims that the State discovered the fraud charged in these counts when
Tom Reed contacted the police in 2010 about White's use of Reed's electronic signature
on an appraisal Reed did not perform. But that victim was not one of those listed in counts
14Apprendi, 530 U.S. at 490.
15 Allevne, 133 S. Ct. at 2155.
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45-55. In July of 2010, Reed met with an investigator from the Department of Housing
and Urban Development and provided her with a copy of a property appraisal performed
for Stay in Home Mortgage. In 2012, Reed supplied the investigator with another incident
of misuse of his credentials. An investigation over the course of the next several years
revealed multiple additional incidents of fraud and the discovery of a codefendant who
participated in the mortgage frauds. Nothing in the record shows that the State had actual
knowledge of the additional incidents more than three years before it charged White with
them. A complaint about one incident by a potential victim of a crime that an investigation
later shows involved a continuing course of criminal conduct with many incidents does
not provide the State with actual knowledge of each incident, only those reported. The
State's actual discovery of an incident starts the statute of limitations for that incident.
Statement of Additional Grounds for Review
White filed a statement of additional grounds for review, alleging ineffective
assistance of counsel and an improper relationship between the prosecutor and the trial
judge.
White argues that his counsel was ineffective for not raising the issue of the statute
of limitations for all of his counts. Because we have already determined that the statute
of limitations did not bar the filing of the information, White's counsel was not ineffective
for failing to raise the issue.16
by the codefendant.
16 We note that the issue of the statute of limitations was raised
White's counsel was present during argument, and the court noted that should it decide
that the statute of limitations barred the convictions for the codefendant, such a bar would
also apply to White. The court later found the statute of limitations did not bar the actions.
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White next claims that an improper relationship existed between the prosecutor
and the judge because the prosecutor had allegedly worked for the judge in the past. The
record before us contains no evidence of any improper relationship. White's conclusory
allegations provide no basis for appellate review.17
Appellate Costs
Finally, White asks this court to deny the State appellate costs based on his
indigency. We generally award appellate costs to the substantially prevailing party on
review. However, when a trial court makes a finding of indigency, that finding continues
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."18 Here, the trial court found White indigent. If the
State has evidence indicating significant improvement in White's financial circumstances
since the trial court's finding, it may file a motion for costs with the commissioner.
Affirmed.
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17 See RAP 10.10(c) (appellate court will not consider statement of additional
grounds for review unless it informs the court of the nature and occurrence of alleged
errors).
18 RAP 14.2.
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