State Of Washington, V Katrina Marie Bowen ( 2015 )


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  •                                                            Filed
    Washington State
    Court of Appeals
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    Division Two
    DIVISION II                                    September 22, 2015
    STATE OF WASHINGTON,                                             No. 46069-6-II
    Respondent,                    UNPUBLISHED OPINION
    v.
    KATRINA MARIE BOWEN,
    Appellant.
    BJORGEN, J.— Katrina Bowen pleaded guilty to first degree theft and stipulated that her
    crime constituted a major economic offense for which the trial court could impose an exceptional
    sentence. The trial court did so. Bowen now appeals, contending that her guilty plea was
    involuntary because there was not a sufficient factual basis for it. Alternatively, Bowen argues
    that the trial court abused its discretion by imposing a clearly excessive exceptional sentence and
    erred by ordering her to pay legal financial obligations without first inquiring into her present or
    future ability to pay. We reject Bowen’ s contention that her plea lacked a factual basis, agree
    that the trial court imposed a clearly excessive sentence, vacate the exceptional sentence, and
    remand for resentencing.1
    1
    Because we vacate Bowen’ s exceptional sentence and remand for resentencing, we do not
    address her challenge to the requirement that she pay legal financial obligations. On
    resentencing, before imposing legal financial obligations, the trial court shall comply with the
    requirements of State v. Blazina, 
    182 Wn.2d 827
    , 838, 
    344 P.3d 680
     (2015), requiring sentencing
    courts to inquire into a defendant’ s current and future ability to pay, including factors such as
    incarceration and a defendant’ s other debts.
    No. 46069-6-II
    FACTS
    Bowen worked as a cashier at the Flying K gas station in Lewis County in a position that
    gave her access to unsold lottery tickets. Bowen availed herself of this access, taking tickets and
    scratching them off in a search for winners. Bowen admitted to paying for some, but not for all
    of the tickets she took.
    The State charged Bowen, by amended information, with first degree theft in violation of
    RCW 9A.56.020(1) and RCW 9A.56.030(1)(a). The State alleged that the thefts constituted a
    major economic offense under RCW 9.94A.535(3)(d).
    Bowen agreed to plead guilty. In her statement on plea of guilty, she acknowledged that
    the State had charged her with first degree theft and that proving the offense required the State to
    show that “ on a date certain in Lewis County” she did “unlawfully take [ the] property of another
    valued in excess of [$]5000.” Clerk’ s Papers (CP) at 22. In the statement, Bowen was asked “ to
    state what [she] did in [her] own words that ma[de] [ her] guilty of” the theft offense. She
    responded that “[ b]etween 1-1-12 and 9-30-1[4] in Lewis County I knowingly took property of
    another (lottery tickets) unla[w]fully - without paying for the tickets, with the intent to deprive
    the owner.” CP at 29.
    At the hearing to enter the guilty plea, the trial court held an extensive colloquy to ensure
    that her plea was done knowingly, voluntarily, and intelligently. Bowen acknowledged that she
    was not making the plea under threat or because anyone had promised her anything for the plea.
    Bowen also stated that she understood the rights she was waiving with the guilty plea. When the
    trial court asked her to explain what made her guilty of the crime, Bowen stated that “ I guess I
    did what I was charged with.” Report of Proceedings (RP) (Jan. 29, 2014) at 6. When the trial
    court pressed Bowen for more details, she said, “ I scratched tickets while I worked. I thought I
    2
    No. 46069-6-II
    was keeping track of them, pay [sic] for all of them, and I guess I wasn’ t, and I scratched about
    500 per shift.” RP (Jan. 29, 2014) at 6-7. The trial court then asked her, “ So you were working
    for the victim and you were . . . taking lottery tickets that were not being sold to you and you
    were scratching them off I assume looking for winners; is that correct?” RP (Jan. 29, 2014) at 7.
    Bowen replied, “ Yes.” RP (Jan. 29, 2014) at 7. Bowen then stipulated that the theft constituted
    a major economic offense under RCW 9.94A.535(d)(ii) and (iv) and that the trial court could
    impose an exceptional sentence based on that stipulation.
    The trial court found a factual basis for the guilty plea based on the statement on plea of
    guilty and the colloquy at the hearing. It entered findings of fact and conclusions of law stating
    its determination that Bowen had offered the plea knowingly, voluntarily, and intelligently and
    accepted the plea.
    The State sought an exceptional sentence of 24 months’ incarceration, noting that a
    standard range sentence based on Bowen’ s offender score would be only 3 months’
    incarceration. Bowen requested leniency based on her acceptance of responsibility for the crime.
    The sentencing court imposed an exceptional sentence of 48 months based on Bowen’ s
    stipulations. This appeal followed.
    ANALYSIS
    I. VOLUNTARINESS OF THE PLEA
    Bowen first contends that the trial court erred by accepting her guilty plea as voluntary
    because the plea lacked a sufficient factual basis. She argues that the State presented no
    evidence that she had stolen more than $5,000 of property of another, an essential element of a
    first degree theft conviction. The State contends that the record as a whole contained evidence
    that Bowen stole more than $5,000. We agree with the State.
    3
    No. 46069-6-II
    The superior court criminal rules prescribe the procedures the trial court must follow
    before accepting a guilty plea. CrR 4.2. The relevant rule provides that a trial court may not
    accept a guilty plea “ without first determining that it is made voluntarily, competently and with
    an understanding of the nature of the charge and the consequences of the plea.” CrR 4.2(d).
    Further, before entering a judgment upon plea of guilty, the trial court must be “ satisfied that
    there is a factual basis for the plea.” CrR 4.2(d). This “ factual basis” requirement in CrR 4.2(d)
    protects a defendant from “‘ pleading voluntarily with an understanding of the nature of the
    charge but without realizing that his [or her] conduct does not actually fall within the charge.’”
    State v. Powell, 
    29 Wn. App. 163
    , 166, 
    627 P.2d 1337
     (1981) (quoting McCarthy v. United
    States, 
    394 U.S. 459
    , 467, 
    89 S. Ct. 1166
    , 
    22 L. Ed. 2d 418
     (1969)). The requirement is satisfied
    if there is sufficient evidence for a jury to conclude that [the defendant] is guilty.’” State v.
    Newton, 
    87 Wn.2d 363
    , 370, 
    552 P.2d 682
     (1976) (quoting United States v. Webb, 
    433 F.2d 400
    ,
    403 (1st Cir. 1970)).
    The record contains an adequate factual basis for Bowen’ s plea. She correctly listed the
    elements of first degree theft in her statement on plea of guilty and stated that she had committed
    the crime by taking lottery tickets over a period of 20 months. Bowen stated in open court that
    she was guilty of first degree theft and, when asked to provide a factual account of her crime,
    Bowen stated that “ I scratched tickets while I worked . . . and I scratched about 500 per shift.”
    RP (Jan. 29, 2014) at 6-7. When the trial court followed up, Bowen admitted that the thefts had
    occurred over a 20-month period. Bowen also stipulated that her offense was a major economic
    offense under RCW 9.94A.535(3)(d)(ii) because the loss inflicted by her theft was “ greater than
    typical for the offense,” meaning greater than $5,000. RP (Jan. 29, 2014) at 8; see RCW
    9A.56.030(1)(a). From this evidence the trial court could readily conclude that Bowen
    4
    No. 46069-6-II
    understood that she had committed first degree theft and that there was a factual basis for the
    plea.
    II. EXCEPTIONAL SENTENCE
    Bowen next contends that the trial court abused its discretion when it imposed an
    exceptional sentence of four years’ incarceration. The State contends that Bowen’ s stipulation to
    the major economic offense aggravator provided the authority for the trial court to impose the
    exceptional sentence. We hold that the exceptional sentence was manifestly unreasonable,
    vacate it, and remand for resentencing.
    The legislature enacted the exceptional sentence provision of the Sentencing Reform Act
    SRA), chapter 9.94A RCW, “‘ to authorize courts to tailor the sentence— as to both the length
    and the type of punishment imposed—to the facts of the case, recognizing that not all individual
    cases fit the predetermined structuring grid.’” State v. Davis, 
    146 Wn. App. 714
    , 719-20, 
    192 P.3d 29
     (2008) (quoting State v. Smith, 
    139 Wn. App. 600
    , 603, 
    161 P.3d 483
     (2007)).
    We review an exceptional sentence
    us[ ing] a three-pronged test: (1) Are the reasons supported by the record under the
    clearly erroneous standard of review? (2) Do those reasons justify a departure from
    the standard range as a matter of law? And (3) was the sentence imposed clearly
    too excessive or lenient under the abuse of discretion standard of review?
    Davis, 146 Wn. App. at 720. A trial court abuses its discretion under the third prong when it
    imposes a sentence that is “‘ clearly excessive,’” meaning one based on untenable grounds or
    reasons or which no reasonable trial court would have imposed. State v. Bluehorse, 
    159 Wn. App. 410
    , 433-34, 
    248 P.3d 537
     (2011) (quoting State v. Ritchie, 
    126 Wn.2d 388
    , 393, 
    894 P.2d 1308
     (1995)).
    We recognize that our Supreme Court has forbidden mechanical comparisons of
    exceptional sentences to standard range sentences, Ritchie, 
    126 Wn.2d at 397
    , and that the
    5
    No. 46069-6-II
    sentencing court is not bound by the recommendations of the prosecuting attorney. State v.
    Harrison, 
    148 Wn.2d 550
    , 557, 
    61 P.3d 1104
     (2003); RCW 9.94A.431(2). However, Bowen’ s
    48-month sentence was grossly disproportionate to the standard range sentence of zero to three
    months. Her sentence also greatly exceeded the prosecutor’ s recommendation for an exceptional
    sentence of 24 months. We hold that the sentencing court abused its discretion, and we vacate
    the sentence.
    CONCLUSION
    We hold that the record contained an adequate factual basis for the trial court to accept
    Bowen’ s guilty plea to the first degree theft charge. However, we hold that the exceptional
    sentence imposed by the trial court was an abuse of its discretion. We vacate that sentence and
    remand for resentencing consistently with this opinion. On resentencing, the court shall enter
    findings supporting the length of any exceptional sentence imposed.
    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 in accordance with RCW 2.06.040,
    it is so ordered.
    BJORGEN, J.
    We concur:
    JOHANSON, C.J.
    SUTTON, J.
    6