State Of Washington v. Steven Andrew Janda ( 2012 )

:OL)RT GrS APPEALS CIV 1
STATE OF WASHINGTOK
2013 APR -9 PH 2= 02
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, NO. 68456-6-1
Respondent, DIVISION ONE
v. ORDER TO PUBLISH OPINION
STEVEN ANDREW JANDA,
Appellant.
Pursuant to RAP 12.3(d), a majority of the panel that issued the opinion
previously filed in the case on October 1, 2012, has determined that the opinion
should be published. Now, therefore, it is hereby
ORDERED that this court's opinion in this case filed October 1, 2012, shall
be published and printed in the Washington Appellate Reports.
DATED this M— day of Mpn I
Ann 2013.
FOR THE COURT:
Judge -/
I~\ I J.
iCCT-l rMG'-Ql
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, No. 68456-6-1
Respondent,
v.
STEVEN ANDREW JANDA, PUBLISHED OPINION
Appellant. FILED: October 1,2012
Ellington, J. — Steven Janda was convicted of two counts of unlawful practice
of law and two counts of first degree theft. He contends his convictions must be
reversed because the unlawful practice statute applies only to persons who are not
"active" members of the state bar association and so applies only to members who are
no longer active. He also contends the court improperly failed to charge his victims as
accomplices, improperly instructed the jury, and that the evidence was insufficient to
support his convictions. Finally, he challenges aggregation of amounts for the theft
counts and the trial court's order prohibiting contact with the victims and witnesses. His
arguments are entirely without merit. We affirm.
BACKGROUND
Janda has never been a lawyer, but for years he operated a business providing
estate planning services. In 1997, the state attorney general's office warned him that
his business constituted the unauthorized practice of law and an unfair practice under
No. 68456-6-1/2
the Consumer Protection Act. He signed an agreement acknowledging both allegations
and promising to cease providing the services. He did not.
In 2004, the State Practice of Law Board determined Janda continued to
practice law without a license. He entered into a cease and desist agreement. Again,
he did not cease his practices.
This prosecution stems from Janda's provision of estate planning services to two
families. In 1994, Irene and Dale Frelin contacted Janda because of a newspaper
advertisement.1 They paid for services including health care directives, wills and living
trusts. Janda persistently urged them they needed additional documents, and in 2003,
he wrote recommending a "sole benefit trust" because of changes in Medicaid. Over
time, he drafted dozens of instruments, including a quit claim deed in favor of their
daughters. Dale became ill in 2004 and Janda drafted more documents. Dale died in
2008, and Irene paid Janda to prepare documents allegedly necessary to settle the
estate. Eventually the Frelins' daughter investigated and learned Janda is not an
attorney.
In 2008, Janda also provided services for Mary McGraw, whose son contacted
Janda for help because McGraw was elderly and suffering from dementia. Janda
prepared documents including a living trust. McGraw died, and Janda charged for
administration of her estate but failed to perform any services. McGraw's son sought
advice from attorney Peter Perron, who eventually filed a complaint against Janda. The
Practice of Law Board contacted the Kent Police Department.
1Janda advertised his business as Evergreen Paralegal Services.
No. 68456-6-1/3
The State charged Janda with two counts of unlawful practice of law and two
counts of first degree theft. Janda moved to dismiss the unlawful practice counts,2
arguing that the unlawful practice statute, RCW2.48.180(2)(a), applies only to formerly
active members of the bar association, not to persons who were never members. The
court denied the motion and refused to permit Janda to make the argument to the jury.
The jury convicted Janda as charged.
DISCUSSION
Janda's central argument is that the unlawful practice statute does not apply to
him because he has never been a member of the Washington State Bar Association. We
review questions of statutory interpretation de novo.3 His argument stems from
RCW2.48.180(1)(b), which provides:
"Nonlawyer" means ... a person who is not an active member in good
standing of the state bar, including persons who are disbarred or
suspended from membership.
Janda claims the phrase "not an active member" applies only to persons who were
formerly active members and not to persons who were never members. His argument is
without merit.
When a statute is plain and unambiguous, we derive its meaning from the words of
the statute itself.4 We also look to the context of the statute, related provisions, and the
statutory scheme as a whole.5 Astatute is ambiguous if it is susceptible to two or more
2Janda represented himself below, as he does here.
3 State v. Keller. 143 Wash. 2d 267, 276, 19P.3d 1030(2001).
4ld
5State v. Ervin. 169 Wash. 2d 815, 820, 239 P.3d 354 (2010) (quoting State v.
Jacobs. 154Wn.2d 596,600, 115 P.3d 281 (2006)).
No. 68456-6-1/4
reasonable interpretations.6 Without a threshold showing ofambiguity, we do not engage
in statutory construction.7
Chapter 2.48 RCW provides for the organization of the Washington State Bar
Association and its board of governors. RCW 2.48.130 provides for bar membership fees
for "active members" and RCW 2.48.140 provides a fee for "inactive members."
RCW 2.48.170 provides that "[n]o person shall practice law in this state ... unless he or
she shall be an active member" of the state bar.
RCW 2.48.180 criminalizes unlawful practice. RCW 2.48.180(2)(a) provides that
the unlawful practice of law occurs when "a nonlawyer practices law, or holds himself or
herself out as entitled to practice law." RCW 2.48.180(1) defines two categories of
"nonlawyers": persons who are authorized by the Washington Supreme Court to engage
in a limited practice of law but who engage in practice outside that authorization, or any
person who is not an active member of the bar in good standing.
Nothing in the language of these statutes supports Janda's interpretation. A
person can plainly be "not an active member in good standing" by being not active, or not
a member, or a member who is not in good standing. The statute is not ambiguous. The
trial court did not lack jurisdiction over Janda,8 relieve the State ofits burden of proof,
violate Janda's constitutional rights, improperly limit his defense by "redefining" the crime,
or improperly impose restitution.
State v.Tili. 139Wn.2d 107, 115, 985 P.2d 365 (1999).
7 Id.
8Janda's jurisdiction arguments are murky. He poses this question: "Is it
possible to be born into the state bar act under the Equal Protection provision of the
Fourteenth Amendment?" Appellant's Br. at 1.
No. 68456-6-1/5
Janda also argues that by permitting the State to introduce into evidence GR 24,
which defines the practice of law, the court relieved the State of its burden to prove the
essential elements of the crime. But it is the province of the Washington Supreme Court
to define what constitutes the practice of law, and it has done so by way of GR 24.9
Janda fails to coherently explain or demonstrate how introduction of the rule at trial
relieved the State of its burden of proof.
For the first time on appeal, Janda challenges jury instruction 7, which stated:
The Defendant is charged in Counts I and II of the Information with the
Unlawful Practice of Law. A person commits the crime of the Unlawful
Practice of Law when, not being an active member of the State Bar, he
practices law or holds himself out as entitled to practice law.[10]
Under RAP 2 .5(a)(3), we review a claim of error not raised below only where the error is
manifest and affects a constitutional right. It is manifest if defendant shows actual and
identifiable prejudice.11
Janda claims the use of the word "person" instead of "nonlawyer" misstates an
essential element of the offense and falsely instructed the jury that "any person could
commit the offense."12 The instruction is a correct statement of the law and Janda can
show neither error nor prejudice.
9 Short v. Demopolis. 103 Wash. 2d 52, 62, 691 P.2d 163 (1984) ("The Supreme
Court has an exclusive, inherent power to admit, enroll, discipline, and disbar
attorneys."): see also Graham v. State Bar Ass'n, 86 Wash. 2d 624, 631, 548 P.2d 310(1976) (regulation of the practice of law is within inherent power of Supreme Court).
10 Clerk's Papers at 265.
11 State v. King. 167 Wash. 2d 324, 329, 219 P.3d 642 (2009).
12 Appellant's Br. at 33.
No. 68456-6-1/6
Also for the first time on appeal, and without citation to relevant authority,13 Janda
claims the trial court admitted evidence obtained in violation of the Fourth Amendment,
that the Practice of Law Board and/or the state bar defamed him by posting information
on the Internet about his business practices, and that the Practice of Law Board
unlawfully interfered in the private affairs of the victims by obtaining copies of the
documents he prepared for them. Janda fails to cogently explain how the collection or
admission of any evidence actually affected his constitutional rights.
Janda next contends his victims should be charged with criminal solicitation under
RCW 9A.08.020(3) because they hired him to perform illegal services.14 He claims the
trial court denied him equal protection by denying his motion to join the victims as
defendants. As the State points out, however, the court has no authority to file criminal
charges and his victims did not knowingly facilitate Janda's illegal actions.
Also for the first time on appeal, Janda contends the court improperly allowed the
jury to aggregate transactions to reach the threshold for first degree theft.15 Relying on
the language of former RCW 9A.56.010(18)(c), he claims each aggregated amount must
13 State v.Kroll. 87 Wash. 2d 829, 838, 558 P.2d 173 (1977) ("Assignments oferror
unsupported by citation authority will not be considered on appeal unless well taken on
their face.").
14 Janda poses the issue as follows: "Hypothetical. If Bonnie pays Clyde to rob a
bank for her, is Bonnie liable for the robbery, too ... ?" Appellant's Br. at 4.
15 Former RCW 9A.56.050(1) (Laws of 1998, ch. 236, § 4), applicable at the time
of the offenses at issue, limited third degree theft to theft of property not exceeding $250
in value. Former RCW 9A.56.010(18)(c) (Laws of 2006, ch. 277, § 4) provided in
pertinent part: "[W]henever any series of transactions which constitute theft, would,
when considered separately, constitute theft in the third degree because of value, and
said series of transactions are a part of a criminal episode or a common scheme or
plan, then the transactions may be aggregated in one count and the sum of the value of
all said transactions shall be the value considered in determining the degree of theft
involved."
No. 68456-6-1/7
individually constitute third degree theft. He is incorrect. The aggregation statute does
not abrogate the common law rule permitting the State to charge one crime based on a
series of acts resulting from "a single continuing criminal impulse or intent pursuant to a
general larcenous scheme or plan."16
Janda also contends the evidence was not sufficient to support his convictions.
In a challenge to the sufficiency of the evidence, all reasonable inferences are drawn in
favor ofthe State.17 Evidence is sufficient if, when viewed in the light mostfavorable to
the prosecution, any rational trier of fact could have found the elements of the crime
beyond a reasonable doubt.18
Here, the State had to prove that Janda practiced law or held himself out as
entitled to practice law while he was not an active member of the state bar in good
standing.19 The court instructed the jury:
The "practice of law" means the application of legal principles and
judgment with regard to the circumstances or objectives of another entity
or person(s) which requires the knowledge and skill of a person trained in
the law. This includes giving advice or counsel to others as to their legal
rights or the legal rights or responsibilities of others for fees or other
consideration. It also includes the selection, drafting, or completion of
16 State v. Barton. 28 Wash. App. 690, 694, 626 P.2d 509 (1981) (five acts of
second degree theft properly aggregated under the common law to charge one count of
first degree theft); see also State v. Kinneman. 120 Wash. App. 327, 340, 84 P.3d 882(2003) ("The aggregation cases permit, but do not require, the State to aggregate
charges in order to charge a defendant with a higher degree of a crime when the State
believes a single scheme can be proved.").
17 State v. Gentry. 125 Wash. 2d 570, 597, 888 P.2d 1105 (1995).
18 id, at 596-97.
19 RCW 2.48.180; see also State v. Hunt. 75 Wn. App.795, 800, 880 P.2d 96(1994).
No. 68456-6-1/8
legal documents or agreements which affect the legal rights of an entity or
person(s).[20]
The State's evidence of Janda's unlawful practice of law, delineated above, was more
than sufficient.
To support the first degree theft charges, the State was required to prove that
Janda, by color of aid or deception, wrongfully obtained over $1,500 from each victim as
part of a common scheme or plan resulting from a single, continuing criminal impulse or
intent.21 Aseries ofthefts may be aggregated to meet the threshold value for first
degree theft if they are part of a common scheme or plan over a period of time.22
Whether a series of thefts is the result of a common scheme or plan is a question of
fact.23
Relying on State v. Mermis,24 Janda contends the State failed to produce
sufficient evidence to prove "a connection between all the acts to join them into one
common scheme or plan and that the last act was the final act necessary for the
completion in the series of acts."25 Mermis involved a single theft, based on a swindle
20 Clerk's Papers at 267. Janda also contends the court's instruction was
improperly based upon GR 24, which is not a statute and therefore not a standard for
defining practice of law. As indicated above, this is incorrect.
21 Former RCW 9A.56.030(1 )(a) (Laws of 2007, ch. 199, § 3);
RCW 9A.56.020(1 )(b); State v. Garman. 100 Wash. App. 307, 316-17, 984 P.2d 453(1999).
22 Garman. 100 Wn. App. at 315: State v. Vininq. 2 Wash. App. 802, 808-09,472
P.2d 564 (1970).
23 Garman, 100 Wn. App. at 315.
24 105 Wash. App. 738, 20 P.3d 1044 (2001).
25 Appellant's Br. at 43.
8
No. 68456-6-1/9
carried out in a series of acts over time. The question was whether the State had filed
the charge within the statute of limitations.26 Mermis has no application here.
Frelin wrote Janda seven checks totaling over $9,000. McGraw paid Janda $750
to draft legal documents and $950 for Janda's promise to administer McGraw's mother's
estate. This is ample evidence to justify aggregation of the amounts.
Finally, Janda challenges the orders prohibiting him from contacting Frelin,
Frelin's daughter Julie Kanikkberg, McGraw, and Perron. He argues there was no
evidence warranting the orders because he abided by a pretrial order prohibiting contact
with Frelin, he has no criminal history, and he "has never had an adverse encounter
with her or any of the other persons listed in the no contact provision in the judgment
and sentence."27
Imposition of orders prohibiting contact with crime victims or witnesses is a
matter for the trial court's discretion.28 Janda shows no abuse of discretion here.
Affirmed in all respects.
WE CONCUR:
^v/.
26 Mermis. 105 Wn. App. at 745-46.
27 Appellant's Br. at 41.
28 RCW 9.94A.505(8): State v. Armendarlz. 160Wn.2d 106, 110, 156P.3d201
(2007).