State of Washington v. Jamie C. Pendleton ( 2021 )

FILED
JULY 6, 2021
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 37296-1-III
Respondent, )
)
v. )
)
JAMIE C. PENDLETON, ) UNPUBLISHED OPINION
)
Appellant. )
SIDDOWAY, J. — Jamie Christen Pendleton appeals multiple convictions for
identity theft and forgery committed in the course of trying to reopen his business, the
Spokane Daiquiri Factory, after becoming ineligible to hold a liquor license. Jury
instruction on an uncharged means requires us to reverse and remand his forgery
convictions for a new trial, and one of the identity theft convictions is unsupported by
substantial evidence. We reverse Mr. Pendleton’s convictions on counts IV, XI, XII and
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XIII. We remand with directions to dismiss count IV with prejudice, for retrial of counts
XI, XII and XIII, and for resentencing on the remaining counts, which we affirm.
FACTS AND PROCEDURAL BACKGROUND
In early 2016, Jamie Christen Pendleton undertook to relicense and reopen a bar in
Spokane, to be operated by Pendleton Enterprises, LLC under the trade name “Spokane
Daiquiri Factory.” Ex. P-5, at 3. The Daiquiri Factory had previously operated in 2014
from premises in the Crescent Building, for a little under a year.
At the time of the planned reopening, however, Mr. Pendleton was ineligible to
obtain a liquor license.1 He was also unemployed. In need of financial support and a
different licensee, he suggested to Sabrina Thompson, with whom he was romantically
involved, that she help him monetarily and become the owner. She agreed. In addition
to providing financial support, she helped him get the business premises cleaned up and
ready to reopen.
Beginning in March 2016, the following steps were taken to relicense and reopen
the bar. On March 30, a business license application was filed online with the
1
Mr. Pendleton committed grand theft in Idaho in June 2015, for which he was
sentenced in May 2016; the date of his conviction does not appear in the record.
According to a witness from the Washington State Liquor and Cannabis Board who
testified at the trial below, Mr. Pendleton had committed a number of regulatory
violations during the nine months he previously held a Washington liquor license. His
conviction was not mentioned during the trial below, and testimony about the liquor
violations was stricken. Several witnesses testified to the fact that he was ineligible to
obtain a liquor license however.
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Washington State Business Licensing Service by Pendleton Enterprises, LLC. The
limited liability company (LLC) had been formed in Washington in 2013. The
application identified Mr. Pendleton’s mother, Jacqueline Pendleton, as the LLC’s
manager, and identified her address as being on Willow Hearth Drive in Houston, Texas.
It identified Jacqueline2 as the preparer of the online application.
The application identified Ms. Thompson as a member of the LLC. It identified as
a second member Mr. Pendleton’s then-23-year-old daughter, who shares the name
Jamie, although her middle name is Khrystian, while his is Christen. We refer to her
hereafter as “Jamie K.” Jamie K. resided in Texas and was estranged from her father,
who she had last spoken to in 2008. The business license application provided an
accurate social security number for Jamie K., but identified her as living in Post Falls,
Idaho. Jamie K. had never been to Idaho. It identified her telephone number as a “208”
area code telephone number that was provided on other licensing and corporate materials
as an after-hours number for Ms. Thompson, a telephone number for Mr. Pendleton, and
a telephone number for the Daiquiri Factory business.3
2
Given the involvement of three Pendleton family members, two with a common
first name, we refer to the defendant as Mr. Pendleton and to his mother and daughter by
their first names, for clarity. We intend no disrespect.
3
208 is an area code in the North American Numbering Plan for Idaho, and was
Idaho’s sole area code until 2017. See Area codes 209 and 986, WIKIPEDIA (available at
https://en.wikipedia.org/wiki/Area_codes_208_and_986).
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On April 1, a “Change in Governing People, Percentage Owned and/or Stock/Unit
Ownership” form for Pendleton Enterprises was completed and filed with the Business
Licensing Service. It was signed by Mr. Pendleton as “Former Owner/Manager.” It
identified the owners of the LLC as Jacqueline, Jamie K. and Ms. Thompson. It gave a
Veradale, Washington, address for Jamie K. and again provided as her telephone number
the “208” area code number used elsewhere by the business, Ms. Thompson, and Mr.
Pendleton. The form stated that Mr. Pendleton’s removal as owner/manager and the
assumption of ownership by the three new members took place on April 1, 2016.
Also completed for Pendleton Enterprises on April 1 was an amended report to the
Washington Secretary of State. Like the change in ownership form, it was signed by Mr.
Pendleton as “Former Owner/Manager” and identified Jacqueline, Jamie K., and Ms.
Thompson as the LLC’s “Governors.” Ex. P-7. This form listed Jamie K.’s address as
the same Houston, Texas, address provided for Jacqueline.
On April 5, Pendleton Enterprises filed a further application online with the
Business Licensing Service. It again identified Jacqueline as the one making the online
filing. This application sought a license to operate a restaurant serving spirits, beer and
wine, and paid the associated license fee of $1,700. Jamie K., Jacqueline, and Ms.
Thompson continued to be identified as the governing persons.
To determine whether a business is qualified to receive a liquor license, the
Washington State Liquor and Cannabis Board (WSLCB) vets the applicant and each
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individual within the applying entity. WSLCB personnel conducted a telephone
interview for Pendleton Enterprises’ liquor license application on April 27, 2016, and
requested additional documentation from the LLC that day and later, in May 2016.
Among the requested documents that Pendleton Enterprises submitted on the same
day as the interview was a limited liability company information form. The form, which
certified the accuracy and completeness of the information provided, identified
Jacqueline, Jamie K. and Ms. Thompson as the LLC’s members. It was signed
“Jacqueline Pendleton.” Ex. P-9.
Also submitted the same day as the interview was a personal/criminal history
statement for Jamie K. The statement identified her then-current address as the same
Willow Hearth Drive address in Houston usually provided for Jacqueline. The statement
certified that its contents were true, correct and complete. Ex. P-10, at 1. It was signed
“Jamie Pendleton.” Id.
In May 2016, the WSLCB required a further attestation as to who owned the
business and would be involved in “the primary duties of the business.” Report of
Proceedings (RP) at 425. The WSLCB was provided with a consent document form from
Pendleton Enterprises and its landlord, FPA Crescent, by the landlord’s agent, Red Tail
Acquisitions. The document stated that the principals of the LLC had changed in January
2016; that Jacqueline, Jamie K. and Ms. Thompson were the current principals; that FPA
Crescent, by its agent, “approves and consents to the new principals”; and that Pendleton
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Enterprises LLC “is the tenant” at the proposed bar location. Ex. P-11. The document
appeared to have been signed by Joan Camera, on behalf of the landlord’s agent.
Finally, the WSLCB requested and received a consent document from FPA
Crescent, addressed to the WSLCB, that “confirm[ed] that Pendleton Enterprises LLC
has full and exclusive rights” to the Daiquiri Factory’s proposed business location in the
Crescent Building. The consent document appeared to have been signed by Curt Lorenz,
property manager for FPA’s agent. Ex. P-12.
Sometime during the following year it came to light that Jamie K. had no
knowledge of having been identified as a member of Pendleton Enterprises and denied
that the purported signature on her criminal history statement was hers. Law enforcement
identified a bank account with Bank of America in Jamie K.’s name, and a Discover
credit card account in Mr. Pendleton’s name but using Jamie K.’s social security number,
that it believed were opened by Mr. Pendleton. It also came to light that FPA’s agent
representatives Camera and Lorenz disclaimed any knowledge of the consent and
certification forms submitted to the WSLCB over their purported signatures. On April
26, 2017, an information was filed charging Mr. Pendleton with 11 counts of identity
theft, 5 counts of forgery, and 1 count of perjury. The charges were amended twice, and
Mr. Pendleton was ultimately tried for 10 counts of second degree identity theft, 3 counts
of forgery, and 1 count of perjury.
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The case proceeded to a six-day trial, during which the State called 12 witnesses.
Among them were Ms. Thompson, Jamie K., Ms. Camera and Mr. Lorenz; the State did
not call Jacqueline as a witness.
Ms. Thompson testified that after advancing Mr. Pendleton the money he needed
to relicense the Daiquiri Factory she was “fairly upset” to find out he had made his
mother and daughter owners as well. He sought to placate her with the explanation that
they were only “beneficiaries to the company.” RP at 159, 165. Ms. Thompson testified
that Mr. Pendleton “coordinated all the paperwork to put the business together.” RP at
158. When he needed signatures on business paperwork, she testified that he would have
her sign first “[a]nd he took care of the rest.” RP at 160. She testified that neither
Jacqueline nor Jamie K. were involved in operations.
Jamie K. disclaimed any knowledge of the Discover account that Mr. Pendleton
opened using her social security number and birth date. She testified that she had once
opened an account with Bank of America “a long time ago . . . like when I first got a
bank account.” RP at 449. But having reviewed the documentation for the Bank of
America account that was the subject matter of count IV, Jamie K. denied opening that
account or giving anyone permission to open the account in her name. She denied
completing or signing the personal/criminal history statement submitted to the WSLCB.
She testified that she first learned of the existence of Pendleton Enterprises and the
Daiquiri Factory from a Google search of her name that she performed in 2016.
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Ms. Camera testified that she was familiar with Mr. Pendleton as a tenant of the
Crescent Building premises “start[ing] in 2014” and “then he left and then he came back
in 2016 for a short time.” RP at 320. She testified that she did not recognize the landlord
consent document provided to the WSLCB that she had ostensibly signed, that the
signature on the document was not hers, and that she had not given anyone permission to
sign the document on her behalf.
Mr. Lorenz testified that in his management role for the Crescent building, he had
“frequently” dealt with Mr. Pendleton in person. RP at 334. He testified that the first
time he had ever seen the FPA Crescent consent document for the WSLCB that
purportedly was signed by him was when it was shown to him by a Spokane police
detective. He testified that he did not create the document, had not given anyone
permission to create it, and had not given anyone permission to sign his name to it.
At the close of the State’s case, the trial court dismissed three of the counts (two
counts of second degree identity theft and one count of perjury) for insufficient evidence.
The defense called no witnesses.
The trial court instructed the jury that to find Mr. Pendleton guilty of forgery, it
had to find that he “offered or put off as true a written instrument which had been falsely
made, completed or altered . . . .” Clerk’s Papers (CP) at 243-45. This was contrary to
the information, which had alleged that Mr. Pendleton, “with intent to injure and defraud,
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did falsely make, complete and alter a written instrument . . . .” CP at 215. The jury
instruction was in a form proposed by Mr. Pendleton.
The jury found Mr. Pendleton guilty of the following 11 counts submitted for its
decision:
Count Date (on Charge Instrument or account Purported
or about) signatory
III 1/5/15 – 2° identity theft Discover account Jamie K.
11/30/15
IV 1/31/16 2° identity theft Bank of America account Jamie K.
V 3/8/16 2° identity theft Bank of America debit card Jamie K.
VI 3/30/16 2° identity theft Business Record Application of Jamie K.
Filing form
VII 4/1/2016 2° identity theft Change in Governing People, Jamie K.
Percentage Owned and/or
Stock/Unit Ownership form
VIII 4/4/2016 2° identity theft Secretary of State Amended Report Jamie K.
IX 4/5/2016 2° identity theft Business License Application Jamie K.
Record of Filing form
X 4/27/2016 2° identity theft Limited Liability Company Jamie K.
Information form
XIII 4/27/2016 Forgery Personal Criminal History Jamie K.
Statement form
XI 5/24/2016 Forgery Landlord Consent Document for Joan
Pendleton Enterprises Camera
XII 5/24/2016 Forgery FPA Crescent Consent Document Curt
-6/7/2016 for WSLCB Lorenz
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See CP at 213-15.
The trial court imposed high end sentences of 57 months for the identity theft
counts and 29 months for the forgery counts, to run concurrently. It ordered Mr.
Pendleton to pay community supervision fees, a $500 victim assessment, $200 in court
costs, $200 in criminal filing fees, and a $100 Deoxyribonucleic acid collection fee. The
legal financial obligations (LFOs) were imposed despite defense counsel’s argument that
Mr. Pendleton was indigent.
Mr. Pendleton appeals.
ANALYSIS
I. MR. PENDLETON’S THREE FORGERY CONVICTIONS REQUIRE RETRIAL
Mr. Pendleton’s first two assignments of error are (1) to the trial court’s jury
instruction on an uncharged means of forgery, and (2) ineffective assistance of trial
counsel in proposing the instruction.
“The Sixth Amendment to the United States Constitution and article I, section 22
of the Washington Constitution require that an accused be informed of the charges he/she
must face at trial.” State v. Lindsey, 177 Wn. App. 233, 246-47, 311 P.3d 61 (2013).
“[W]here the statute provides that a crime may be committed in different ways or by
different means, it is proper to charge in the information that the crime was committed in
one of the ways or by one of the means specified in the statute, or in all the ways.” State
v. Severns, 13 Wn.2d 542, 548, 125 P.2d 659 (1942). If only one of the alternatives is
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charged in the information, it is error to instruct the jury that it can convict on the basis of
the uncharged alternatives. State v. Bray, 52 Wn. App. 30, 34, 756 P.2d 1332 (1988)
(citing Severns, 13 Wn.2d at 548). “Instructing the jury on uncharged alternatives is a
manifest error affecting a constitutional right that this court will address for the first time
on appeal.” State v. Sanchez, 14 Wn. App. 2d 261, 267, 471 P.3d 910 (2020).
Forgery is an alternative means crime. Bray, 52 Wn. App at 34-35. A person is
guilty of the crime of forgery if, with intent to injure or defraud, he or she either “falsely
makes, completes, or alters a written instrument,” RCW 9A.60.020(1)(a), or “possesses,
utters, offers, disposes of, or puts off as true a written instrument which he or she knows
to be forged.” RCW 9A.60.020(1)(b).
As recounted above, the State’s information alleged only one alternative means for
the three forgery charges: that Mr. Pendleton “did falsely make, complete and alter a
written instrument.” CP at 147 (emphasis added). Yet the jury was instructed that its
duty was to return a verdict of guilty if the State proved that Mr. Pendleton “offered or
put off as true a written instrument which had been falsely made, completed or altered.”
CP at 243-45 (emphasis added).
The problematic means language in the instruction was proposed by Mr.
Pendleton. The invited error doctrine precludes review of an instructional error—even
one of constitutional magnitude—if the challenged instruction was proposed by the
defendant. State v. Doogan, 82 Wn. App. 185, 188, 917 P.2d 155 (1996) (citing State v.
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Henderson, 114 Wn.2d 867, 870, 792 P.2d 514 (1990)). The invited instructional error is
not a basis for reversing the convictions.
An ineffective assistance of counsel claim is not foreclosed by invited error,
however. Id. In order to show counsel was ineffective, the defendant must show
“counsel’s conduct was deficient and that the conduct resulted in actual prejudice.” Id.While we strongly presume counsel was not deficient, we may find counsel deficient if
counsel had no legitimate tactical reason for an allegedly incompetent act. Id. at 188-89.
It is clear error to instruct the jury on an uncharged means, so deficient representation is
shown.
“‘An erroneous instruction given on behalf of the party in whose favor the verdict
was returned is presumed prejudicial unless it affirmatively appears that the error was
harmless.’” Sanchez, 14 Wn. App. 2d at 267 (quoting Bray, 52 Wn. App at 34-35).
“The error cannot be harmless when the jury possibly convicted the accused on the basis
of the uncharged alternative.” Id. at 268.
The State concedes that the jury would have relied on the incorrect instruction in
finding Mr. Pendleton guilty of the three forgery counts. We agree, reverse his
convictions on counts XI, XII and XIII, and remand those charges for retrial. Reversal of
these three convictions and a fourth, which we reverse below, will reduce Mr.
Pendleton’s offender score from 11 to 7 and cause his sentences to exceed the standard
range. See RCW 9.94A.510. Resentencing is required.
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II. CHALLENGES TO THE SUFFICIENCY OF THE EVIDENCE
Mr. Pendleton’s third and fourth assignments of error are to the sufficiency of the
evidence to sustain eight of his convictions. Three are forgery convictions that we are
already remanding for a new trial. If the evidence was insufficient, however, Mr.
Pendleton is entitled to dismissal of the charges with prejudice.
“Under both the federal and state constitutions, due process requires that the State
prove every element of a crime beyond a reasonable doubt.” State v. Johnson, 188
Wn.2d 742, 750, 399 P.3d 507 (2017). In reviewing a claim for insufficient evidence,
appeals courts consider “‘whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’” Id. (quoting State v. Green, 94 Wn.2d 216, 221, 616
P.2d 628 (1980) (plurality opinion)). “A claim of insufficiency admits the truth of the
State’s evidence and all inferences that reasonably can be drawn therefrom.” State v.
Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
Circumstantial evidence carries the same weight as direct evidence. State v.
Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004), abrogated in part on other grounds by
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). “In
determining whether the requisite quantum of proof exists, the reviewing court need not
be convinced of the defendant’s guilt beyond a reasonable doubt, but only that substantial
evidence supports the State’s case.” State v. Jones, 93 Wn. App. 166, 176, 968 P.2d 88813
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(1998). Appellate courts defer to the fact finder on the resolution of conflicting
testimony, credibility determinations, and the persuasiveness of the evidence. Thomas,
150 Wn.2d at 874-75.
A. Counts III and IV: allegedly insufficient proof that the offenses were
committed in Washington State
Mr. Pendleton’s third assignment of error challenges the sufficiency of evidence to
prove that the identity thefts charged as counts III and IV were committed in Washington
State. Those counts dealt with the credit card account with Discover and the bank
account with Bank of America that were opened or reopened in the names of Mr.
Pendleton and Jamie K., respectively. Where elements of a crime are committed in
different states, “any state where an essential part of the crime has been committed may
take jurisdiction,” at least where a state defines jurisdiction by statute.4 State v. Lane,
112 Wn.2d 464, 470, 771 P.2d 1150 (1989).
Count III: the Discover account. Elements the jury was instructed the State was
required to prove beyond a reasonable doubt for count III were
(1) That on or about or between January 5, 2015 and November 30, 2015
the defendant knowingly used a means of identification or financial
information, to-wit: Discover Account ending xxxxx4998, of another
person, living or dead, to-wit: Jamie Khrystian Pendleton;
(2) That the defendant acted with the intent to commit any crime;
Washington defines jurisdiction by statute. See RCW 9A.04.030(1) (“A person
4
who commits in the state any crime, in whole or in part.”).
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(3) That the defendant knew that the means of identification or financial
information belonged to another person; and
(4) That any of these acts occurred in the State of Washington.
CP at 231.
A senior field investigator employed by Discover testified at trial and identified
trial exhibit P-2, a collection of screen printouts of internal Discover records and
statements for a Discover account in the name of Jamie C. Pendleton. The account was
opened online on January 6, 2015. A Post Falls, Idaho, address was entered as Mr.
Pendleton’s home address, and Mr. Pendleton lived in Idaho at the time. While the
Discover account was in Mr. Pendleton’s name, Jamie K.’s social security number and
date of birth were used in place of his own. Jamie K. testified she never opened a
Discover account.
While transactions reflected on the Discover account statements most often
occurred in Idaho, the statements reflect a $179.11 charge at a Comfort Inn & Suites in
Spokane, Washington, on January 24, 2015.
Mr. Pendleton argues that there is insufficient evidence that he made online
application for the account in Washington. Br. of Appellant at 18-19. But the jury
instructions did not require the State to prove that he opened the account in Washington;
they required it to prove that Mr. Pendleton used the account knowing that identification
information used for the account belonged to Jamie K.
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Viewing the evidence and reasonable inferences in the light most favorable to the
State, a reasonable jury could find that Mr. Pendleton committed a criminal act described
in the instruction between January 5 and November 30, 2015, in the State of Washington.
Count IV: Bank of America account. Elements the jury was instructed the State
was required to prove beyond a reasonable doubt for count IV were
(1) That on or about January 31, 2016, the defendant knowingly used a
means of identification or financial information, to-wit: Bank of
America Account ending xxxxx3555, of another person, living or
dead, to-wit: Jamie Khrystian Pendleton;
(2) That the defendant acted with the intent to commit any crime;
(3) That the defendant knew that the means of identification or financial
information belonged to another person; and
(4) That any of these acts occurred in the State of Washington.
CP at 232.
A custodian of records for Bank of America testified at trial and identified trial
exhibit P-3, which was a collection of screen shots of internal bank records and
statements for a Bank of America account in the name of Jamie Khrystian Pendleton.
The record custodian testified that a checking account was opened under the account
number in 2011 and was closed in 2013. The custodian testified that the address for the
account was updated on February 1, 2016, and she identified checking account statements
for the account for the period February 1 through July 15, 2016. The bank’s records
suggest that a debit card issued on January 31, 2016, accounted for the reactivation.
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Jamie K. testified that although she opened a Bank of America account many years
earlier, the account documented by exhibit P-3 was not an account that she had opened or
reactivated.
Mr. Pendleton points out that for this charge, the State was required to prove that
he used Jamie K.’s identity on a particular date, not a range of dates; it was required to
prove that he used it “on or about January 31, 2016.” CP at 232. The State presented
evidence that Mr. Pendleton used the Bank of America debit card to rent a U-Haul trailer
in Spokane in March 2016, but it presented no evidence that Mr. Pendleton used the card
or account on January 31, 2016, in the state of Washington. The evidence is insufficient.
Mr. Pendleton’s conviction for count IV must be reversed and the charge dismissed with
prejudice.
B. Counts VI, IX, X, XI, XII and XIII: allegedly insufficient proof that Mr.
Pendleton, as opposed to another person, committed the alleged criminal
acts
Mr. Pendleton’s final challenge to his convictions is that the State failed to prove
beyond a reasonable doubt that he prepared or presented the documents admitted as
exhibits P-5, P-8, P-9, P-10, P-11, and P-12, which account for three of the identity theft
charges and the three forgery charges. These are the forms completed and submitted to
the State of Washington Business Licensing Services (Business Licensing Services), and
the several documents required by the WSLCB in March, April and May 2016. Mr.
Pendleton argues that his signature does not appear on any of these documents; no one
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testified that they saw him prepare the documents or otherwise had personal knowledge
that he did so; and
[t]he only evidence connecting Pendleton to these documents was the
testimony that he was instrumental in founding the business and the bar,
and that he alone was present at the bar one day when a police officer,
fire marshal, and liquor control agent visited.
Br. of Appellant at 21.
Mr. Pendleton identifies Jacqueline as another person who could have committed
the alleged criminal acts. He argues that the documents filed online with Business
Licensing Services identified her as the preparer and the limited liability company
information form submitted at the WSLCB’s request on April 27 was signed with her
name. He also argues that Jacqueline “is Jamie K.’s grandmother and presumably had as
much knowledge of Jamie K.’s identifying information as Pendleton.” Id. at 22.
Mr. Pendleton understates the State’s evidence against him. He admits there was
evidence that he was instrumental in founding Pendleton Enterprises and the Daiquiri
Factory. Beyond that, however, there was evidence that he was the moving force in
attempting to reopen it. Ms. Thompson testified that he coordinated all the paperwork,
dispatched forms for signatures as needed, and persuaded her to provide money needed
and to help clean up the premises. She testified that neither Jacqueline nor Jamie K. were
on site and only she, not they, was involved monetarily. She testified that, according to
Mr. Pendleton, Jacqueline and Jamie K. were only needed as “beneficiaries.”
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The same Spokane police officer who encountered only Mr. Pendleton at the bar
premises when he, a fire marshal, and a liquor control agent made an inspection also
attended a business licensing appeal by Pendleton Enterprises that took place on June 21,
2016. He testified that Mr. Pendleton was present for the appeal but no other putative
owner of the LLC was there.
Ms. Camera and Mr. Lorenz testified that they knew Mr. Pendleton as the tenant
of the Daiquiri Factory’s premises in the Crescent Building. Ms. Camera was explicit
that she knew him as the tenant for the period when the premises were reoccupied in
2016.
A jury could reasonably infer that because Jamie K. and Mr. Pendleton share the
same name, listing Jamie K. as an owner of the business would better enable Mr.
Pendleton to participate in the business without raising a red flag. Contrary to Mr.
Pendleton’s argument, falsely identifying Jamie K. as an owner is not equally suggestive
that Jacqueline was the perpetrator of identity theft. Jamie K. testified that she had a
relationship with Jacqueline, “[w]hen [she] was a child” but denied saying that she
maintained a relationship with her. RP at 469-70. As of the time of trial, Jamie K. did
not know Jacqueline’s address. A father could be expected to have a child’s social
security number—even an estranged father, who might have paid child support and
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claimed a child as a dependent—but Mr. Pendleton doesn’t explain why Jacqueline
would have Jamie K.’s social security number. He doesn’t explain why Jacqueline would
know Jamie K.’s address if Jamie K. did not know Jacqueline’s address.
And given other evidence in the case, Jacqueline’s identification as the preparer or
signatory on several documents is not compelling defense evidence. The jury was
presented with a great deal of evidence that identity theft had been used in an effort to
relicense and reopen the Daiquiri Factory. Given Mr. Pendleton’s central role and the
other wrongdoing committed in pursuit of relicensing, jurors could reasonably infer that
he was willing to make applications and attestations in the name of his 70-year-old
mother from Houston in order to hide his own, disqualifying, involvement.
The evidence that Mr. Pendleton committed the criminal acts charged is sufficient.
III. INDIGENCY MUST BE TAKEN INTO CONSIDERATION AT RESENTENCING
Finally, Mr. Pendleton contends that because he is indigent, it was error for the
trial court to order him to pay a $200 criminal filing fee and community supervision fees.
“Whenever a person is convicted in superior court, the court may order the
payment of a legal financial obligation as part of the sentence.” RCW 9.94A.760(1).
This is subject to the exception that “[t]he court may not order an offender to pay costs as
described in RCW 10.01.160 if the court finds that the offender at the time of sentencing
is indigent as defined in RCW 10.101.010(3)(a) through (c).” Id.; see also State v.
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No. No. 37296-1-III
State v. Pendleton
Ramirez, 191 Wn.2d 732, 746, 426 P.3d 714 (2018). If a defendant is statutorily
indigent, then for purposes of imposing costs being able-bodied and capable of being
employed is not part of the analysis.
The criminal filing fee imposed by the court is a cost subject to the indigency
exception. RCW 36.18.020(2)(h). Mr. Pendleton was found indigent for purposes of his
appeal on the basis of a declaration stating he had no annual income, thereby falling
within the definition of indigency provided by RCW 10.101.010. As the State concedes,
it was error to impose the criminal filing fee.
Supervision fees are governed by RCW 9.94A.703(2)(d), which provides that
“[u]nless waived by the court, as part of any term of community custody, the court shall
order an offender to . . . [p]ay supervision fees as determined by the [Department of
Corrections].” Because supervision fees are waivable, they are discretionary, but they are
not a “cost” under RCW 10.01.160 that is prohibited from being imposed on an indigent
defendant. See State v. Spaulding, 15 Wn. App. 2d 526, 536-37, 476 P.3d 205 (2020).
We reverse Mr. Pendleton’s convictions on counts IV, XI, XII and XIII. We
remand with directions to dismiss count IV with prejudice, for retrial of counts XI, XII
and XIII, and for resentencing for the remaining convictions, which we affirm. In
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No. No. 37296-1-III
State v. Pendleton
resentencing Mr. Pendleton, the criminal filing fee shall not be imposed if he remains
indigent.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_____________________________
Siddoway, J.
WE CONCUR:
_____________________________
Pennell, C.J.
_____________________________
Fearing, J.
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