State Of Washington v. Candace Lynn Ralston ( 2015 )

Filed
Washington State
Court of Appeals
Division Two
December 15, 2015
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 45883-7-II
Consolidated with No. 46546-9-II
Respondent,
v.
CANDACE LYNN RALSTON, UNPUBLISHED OPINION
Appellant.
WORSWICK, P.J. — Candace Ralston appeals her exceptional sentence following an
Alford plea.1 Ralston pleaded guilty to first degree theft2 and forgery,3 and stipulated to an
aggravating factor of major economic offense4 for both counts. The sentencing court imposed a
concurrent sentence of 96 months on the theft charge and 36 months on the forgery charge. The
court ordered restitution totaling $294,115.73, including $66,427.56 to CHUBB Insurance
Company for investigative fees, and $8,607.54 to CHUBB for employee expenses. The court
also imposed a total of $39,211.35 in legal financial obligations (LFOs). Ralston argues (1) the
court imposed a clearly excessive exceptional sentence, (2) the court improperly awarded
restitution for the investigative fees and employee expenses based on speculation and conjecture,
1
North Carolina v. Alford, 500 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
2
RCW 9A.56.030.
3
RCW 9A.60.020.
4
RCW 9.94A.535(3)(d).
No. 45883-7-II
Cons. with No. 46546-9-II
and (3) the court improperly imposed LFOs without finding Ralston could or would be able to
pay them. We affirm.
FACTS
I. THEFT AND FORGERY
Candace Ralston worked at Alderbrook Resort & Spa (Alderbrook)5 in Mason County for
eight years. Between November 2009 and April 2011, Ralston misappropriated $213,581.15
from Alderbrook. On January 6, 2014, in exchange for the prosecutor’s agreement to drop two
charges, Ralston entered an Alford plea of guilty to one count of first degree theft and one count
of forgery. Ralston stipulated to the aggravating factor of major economic offense for both
counts. The court found that there were sufficient facts to support the plea and found the
aggravating factor for both counts.
II. SENTENCING
The sentencing court imposed an exceptional sentence of 96 months for first degree theft
and 36 months for forgery, to run concurrently, based on the aggravating factor of major
economic offense.6 The court noted there were multiple incidents, the actual monetary loss of
the thefts were “far greater than the typical First Degree Theft,” the theft took a high degree of
sophistication and planning and went over an extended period of time, and Ralston abused her
position of trust with respect to her employer. 2 Verbatim Report of Proceedings (VRP) at 272.
5
The sentencing court and briefs often refer to “North Forty.” North Forty Lodging, LLC is the
lodging company that owns Alderbrook Resorts and for ease of reference we use the term
Alderbrook.
6
The standard ranges for first degree theft and forgery are two to six months and zero to ninety
days, respectively. RCW 9.94A.510.
2
No. 45883-7-II
Cons. with No. 46546-9-II
The sentencing court ordered Ralston to pay $5,678.50 in court costs, which included
discretionary fees of $200.00 and $4,878.50 for filing and sheriff service, respectively. The
court also ordered Ralston to reimburse the county $34,133.85 for the cost of court appointed
counsel and defense experts. This resulted in a total legal financial obligation of $39,211.35.
After the sentencing court imposed the LFOs, it asked defense counsel what type of
employment and monthly income Ralston would likely have after her release from prison.
Counsel responded that given her background and conviction, “she’s probably not going to get
any type of employment that she’s previously had,” and any employment she would be able to
obtain upon release would be “on the low end somewhere.” 2 VRP at 273. The sentencing court
then set minimum monthly payments at $25.00 per month, noting, “Obviously, that isn’t going to
be enough to even cover the interest that accrues at twelve percent per annum.” 2 VRP at 273.
Ralston made no objections at sentencing.
III. RESTITUTION
At the restitution hearing, the prosecutor itemized the restitution requests to the court.
The sentencing court ordered a total of $294,115.73 in restitution payments to CHUBB,
Alderbrook, and Key Bank.7 Of the restitution ordered to CHUBB, the court ordered $8,607.54
for employee expenses and $66,427.56 for accounting services performed by Moss Adams, LLP
(Moss Adams).
7
Alderbrook maintained an insurance policy with CHUBB that covered employee theft. Under
this policy, CHUBB compensated Alderbrook’s total loss. Key Bank reimbursed Alderbrook for
two fraudulent checks forged by Ralston.
3
No. 45883-7-II
Cons. with No. 46546-9-II
Alderbrook hired Moss Adams to investigate the theft. The $66,427.56 represented a 10
percent reduction of the full fee for Moss Adams’ services because the State admitted that a
portion of the hours billed by Moss Adams were spent analyzing Ralston’s alleged fraudulent
gift card transactions unrelated to the charges ultimately filed. The sentencing court found the
investigative fees were appropriate items of restitution because the work done by the accounting
firm was the result of the theft by Ralston.
Additionally, the court ordered $8,607.54 in restitution to compensate for costs incurred
for employee salaries devoted to dealing with Ralston’s thefts. In making its oral restitution
ruling, the sentencing court stated it looked to the restitution estimate signed by the president of
North Forty Lodging, LLC, Brian McGinnis, an excerpt from an e-mail from Alderbrook
employee Sarah Delgado that she had estimated the time spent over the course of the
investigation, and the efforts of employees who went through receipts, ledgers, and journal
entries in investigating the theft to determine the amount of restitution requested for employee
expense was reasonable.
The restitution estimate submitted by McGinnis listed the three Alderbrook employees
who dealt with Ralston’s thefts, outlined the number of hours each employee spent on the case,
and calculated the employee expense Alderbrook incurred for each worker.
ANALYSIS
I. EXCESSIVE SENTENCE
Ralston argues that the sentencing court abused its discretion when it imposed a clearly
excessive sentence against her. We disagree.
4
No. 45883-7-II
Cons. with No. 46546-9-II
Under RCW 9.94A.585(4)(b), we may reverse an exceptional sentence if it is clearly
excessive. We review whether an exceptional sentence is clearly excessive for abuse of
discretion. State v. Knutz, 161 Wash. App. 395, 410, 253 P.3d 437 (2011). When an exceptional
sentence is based on proper reasons, we will hold it clearly excessive only “if its length, in light
of the record, ‘shocks the conscience.’” Knutz, 161 Wash. App. at 410-11 (quoting State v.
Kolesnik, 146 Wash. App. 790, 805, 192 P.3d 937 (2008)). A sentence shocks the conscience if it
is one that “no reasonable person would adopt.” Knutz, 161 Wash. App. at 411 (quoting State v.
Halsey, 140 Wash. App. 313, 324-25, 165 P.3d 409 (2007)). The sentencing court has “all but
unbridled discretion in setting the length of the sentence.” Halsey, 140 Wn. App. at325 (quoting
State v. Creekmore, 55 Wash. App. 852, 864, 783 P.2d 1068 (1989)).
As part of her Alford plea, Ralston stipulated that there was sufficient evidence to support
the aggravating factor of her crime being a major economic offense. The sentencing court found
the theft to be a major economic offense in a variety of ways.8 Ralston does not challenge the
fact that the sentencing court imposed an exceptional sentence. Rather, she contends that her
exceptional sentence is clearly excessive. We disagree.
Ralston attempts to bolster her argument that her exceptional sentence is clearly
excessive by comparing her sentence to sentences in other cases. In State v. Ritchie, our
8
The sentencing court found Ralston’s crimes to constitute a major economic offense based on
the following: (1) the offenses involved actual monetary loss substantially greater than typical
for the offense of first degree theft and/or forgery; (2) the offenses involved a high degree of
sophistication and planning; (3) the offenses occurred over a lengthy period of time; and (4)
Ralston used her position of trust, confidence, or fiduciary responsibility to facilitate the
commission of the crime. RCW 9.94A.535(3)(d).
5
No. 45883-7-II
Cons. with No. 46546-9-II
Supreme Court rejected the notion that the length of an exceptional sentence must be
proportionate to sentences in similar cases. 126 Wash. 2d 388, 396, 894 P.2d 1308 (1995). Ritchie
rejected any “mechanical approach” of comparing the sentence at issue with the average
sentence for the same crime, or the average sentence for more serious crimes, or comparisons to
the midpoint of the standard ranges for the crime at issue. 126 Wash. 2d at 397. Rather, the salient
inquiry regarding the length of the exceptional sentence is whether the sentencing court abused
its discretion in imposing that sentence. 126 Wash. 2d at 392.
This sentence, in light of the record, does not shock the conscience. Ralston stole over
$200,000 from her employer over a period of one and a half years. The sentencing court found
this amount to be substantially greater than typical for the offense of first degree theft and/or
forgery. Ralston accomplished her theft using a high degree of sophistication and planning over
a lengthy period of time, and she misappropriated more than fifty cash deposits, falsified
accounting records, and forged checks. The sentencing court found that Ralston used her
position of trust, confidence, and fiduciary responsibility to facilitate her crime. At sentencing,
Alderbrook’s owners’ representative and Ralston’s assistant each spoke to the financial and
emotional toll her actions took. We hold that Ralston’s sentence is not excessive.
II. RESTITUTION ORDER
Ralston argues that the sentencing court improperly relied on speculation and conjecture
in setting her restitution order, and requests that we vacate the order and remand for a new
restitution hearing. Ralston specifically disputes the sentencing court’s restitution award for
investigative fees and employee expenses. We affirm the sentencing court’s restitution order.
6
No. 45883-7-II
Cons. with No. 46546-9-II
A sentencing court’s order of restitution will not be disturbed on appeal absent abuse of
discretion. State v. Tobin, 161 Wash. 2d 517, 523, 166 P.3d 1167 (2007). A sentencing court
abuses its discretion when its decision is manifestly unreasonable, or exercised on untenable
grounds, or imposed for untenable reasons. State v. Hahn, 100 Wash. App. 391, 398, 996 P.2d
1125 (2000). It is the State’s burden to prove the amount of restitution by a preponderance of the
evidence. 100 Wash. App. at 399. Although the State need not prove the amount with specific
accuracy, the restitution award must be based on easily ascertainable damages and the evidence
must be sufficient to allow the sentencing court to estimate the damages without having to
engage in speculation or conjecture. 100 Wash. App. at 398-99. The legislature intended “to grant
broad powers of restitution” to the sentencing court. Tobin, 161 Wash. 2d at 524. We do not
engage in overly technical construction that would permit the defendant to escape from just
punishment. 161 Wash. 2d at 524.
Ralston argues the award of investigative fees was improper because Moss Adams’
invoices were not itemized, and the deduction of 10 percent from Adams’ total fees was mere
speculation. Ralston contends that the 10 percent reduction of Moss Adams’ total invoice was
“nothing more than a guess.” Br. of Appellant at 16. However, the 10 percent reduction was
determined after asking a representative of Moss Adams how much time was spent on the gift
card investigation. In ruling on this portion of the restitution order, the sentencing court found
that the work done by Moss Adams was a result of the theft by Ms. Ralston and that it was
necessary. It is clear that all of the Moss Adams expenses were incurred as a direct result of
Ralston’s thefts. In conducting its investigation, Moss Adams did not itemize each portion of
their investigation according to what specific charges would eventually be brought by the
7
No. 45883-7-II
Cons. with No. 46546-9-II
prosecutor. But Moss Adams was able to give a reasonable estimate that was more than
speculation or conjecture.
Ralston also argues that the restitution award for employee expenses was an abuse of
discretion because Alderbrook had not kept track of the hours they devoted to the theft.
However, the number of hours each employee spent on the investigation of Ralston’s thefts was
sufficiently estimated and outlined by McGinnis and Delgado. In ruling on this portion of the
restitution order, the sentencing court also considered the extensive receipts, ledgers, and journal
entries the employees sifted through in investigating the theft to determine the amount of
restitution requested for employee expenses was reasonable. While it is true this evidence is
based on estimation, given the totality of the circumstances, the estimates were reasonable and
went beyond mere speculation or conjecture.
We recognize that the restitution statutes were intended to require the defendant to face
the consequences of her criminal record. Tobin, 161 Wash. 2d at 524. We hold that the sentencing
court relied on sufficient evidence in determining the amount of restitution to award for
employee expenses.
III. DISCRETIONARY LEGAL FEES
Finally, Ralston argues that the sentencing court improperly imposed LFOs without
considering her ability to pay. Ralston did not challenge this finding during sentencing and, thus,
she cannot do so as a matter of right for the first time on appeal. State v. Blazina, 174 Wash. App.
906, 911, 301 P.3d 492 (2013), remanded, 182 Wash. 2d 827, 344 P.3d 680 (2015). Our decision
in Blazina, over a year before Ralston’s July 2014 sentencing hearing, provided notice that the
failure to object to LFOs imposed at sentencing waived the issue on appeal. 174 Wash. App. at
8
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Cons. with No. 46546-9-II
911. As our Supreme Court noted in reviewing our decision in Blazina, an appellate court may
in its discretion decline to reach such unpreserved claims of error. Blazina, 182 Wash. 2d at 830.
Because Ralston had sufficient notice of her obligation to object to LFOs imposed at sentencing
to preserve the issue for appeal, we exercise our discretion and decline addressing Ralston’s
contention with her LFOs for the first time on appeal.
CONCLUSION
We affirm.
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.
Worswick, P.J.
We concur:
Lee, J.
Sutton, J.
9