State of Washington v. Meghan Bradford Sandvig

FILED
APRIL 26, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 32599-7-111
Respondent, )
)
v. )
)
MEGHAN BRADFORD SANDVIG, ) UNPUBLISHED OPINION
)
Appellant. )
SIDDOWAY, J. - Meghan Sandvig, a first time offender who pleaded guilty to 30
counts of first degree theft, appeals her exceptional sentence of 90 months. She asserts
that the 30 transactions should be considered a single unit of prosecution and that as a
result, the sentence violates double jeopardy principles. Under State v. Reeder, 184
Wash. 2d 805, 365 P.3d 1243 (2015), because the 30 transactions occurred at separate times,
we hold the charges do not constitute a single unit of prosecution and Ms. Sandvig's
sentence does not violate double jeopardy principles.
Ms. Sandvig also argues the sentencing court erred when it imposed an
exceptional sentence. Because Ms. Sandvig stipulated to the facts that supported the
aggravating factor and the factors the court relied on were proper, Ms. Sandvig's
exceptional sentence is upheld. Next, Ms. Sandvig challenges the $100 monthly
No. 32599-1-III
State v. Sandvig
restitution payment she was ordered to make after her release from incarceration. We
find that the court did not abuse its discretion. Finally, for the first time on appeal, Ms.
Sandvig challenges the court's imposition of discretionary legal financial obligations
(LFOs). Ms. Sandvig failed to preserve this argument for review, but because the court
indicated that it was unlikely Ms. Sandvig would be able to repay the restitution, we
choose to exercise our discretion and remand with instructions for the sentencing court to
strike the obligations.
FACTS
Meghan Sandvig was charged with 30 counts of first degree theft. The charging
information alleged that Ms. Sandvig, in her capacity as bookkeeper for Premier Paint,
transferred more than $5,000 of business funds to her own personal account on each of 30
occasions between June 10, 2011 and September 27, 2013 . 1 Each of the 30 counts is
associated with a different date of transaction.
The information also alleged two aggravating factors. The first factor alleged that
Ms. Sandvig committed multiple current offenses, and that the resulting high offender
score would result in numerous current offenses going unpunished. The second factor
1
Although she was only charged with crimes between this time period, Ms.
Sandvig's plea agreement acknowledges that she began stealing from her employer
nearly two years earlier, in September 2009. Because the information was cumbersome
enough as it was, the State chose to limit the information to the 30 counts rather than
allege all the thefts.
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alleged that the crime was a major economic offense "because it involved multiple
incidents per victim, it involved actual monetary loss substantially greater than typical for
the offense, and [Ms. Sandvig] used her position of trust, confidence, or fiduciary
responsibility to facilitate the commission of the current offense." Clerk's Papers (CP) at
28.
Ms. Sandvig pleaded guilty as charged. She stipulated that the facts support the
aggravating factors, but argued that an exceptional sentence was not appropriate.
At sentencing, Ms. Sandvig spoke to the court.
I would like to make amends for my actions. It was an inexcusable lapse in
judgment and moral behavior. I know that stealing is wrong. I am
extremely ashamed of my actions and I will never repeat them.
I want to be a productive member of society and give back in a
meaningful way.
Report of Proceedings (RP) at 67. 2
The court determined the 30 counts were notpart of the same criminal conduct,
and sentenced Ms. Sandvig using an offender score of nine. Then, the court determined
that the facts supported and warranted an exceptional sentence for the reasons offered by
the State. The court sentenced Ms. Sandvig to 90 months of incarceration, explaining
that the "idea [was] three months per count." RP at 73.
2
In fact, Ms. Sandvig's attorney represented: "She is-she is willing to sell
whatever equity in her house to pay them back. She's willing to do whatever she can to
try and-and make up for the wrongs that she's done .... [S]he's doing what she can to
be held accountable." RP at 59-60.
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While the court did not order restitution at sentencing, explaining there would be a
restitution hearing later, the court noted that the State was alleging over $577,000 in
restitution damages. The court ordered that upon release from incarceration, Ms. Sandvig
make monthly payments in the amount of $100 toward the restitution. The court noted
that Ms. Sandvig would likely never be able to repay the restitution.
Also at sentencing, the court imposed LFOs in the amount of $850. Of those
costs, $250 were discretionary and were imposed without the court making an
individualized inquiry into Ms. Sandvig's present or likely future ability to pay. Ms.
Sandvig did not object.
Ms. Sandvig appeals.
ANALYSIS
On appeal, Ms. Sandvig argues her sentence violates principles of double
jeopardy. She also contends the court erred in imposing an exceptional sentence because
one of the aggravating factors relied on takes into account the multiplicity of incidents
and further because the sentence is clearly excessive. Finally, Ms. Sandvig challenges
the court's imposition of discretionary LFOs as well as the court's order that she pay
$100 a month toward restitution.
Double jeopardy-unit ofprosecution
Ms. Sandvig argues that her multiple convictions violate double jeopardy
principles because the 30 convictions constitute a single unit of prosecution.
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Claims of double jeopardy are questions of law, which we review de novo. State
v. Hughes, 166 Wash. 2d 675, 681, 212 P.3d 558 (2009). "The double jeopardy clause of
the Fifth Amendment and the state constitutional protection against double jeopardy,
article I, section 9, offer the same scope of protection." Reeder, 184 Wash. 2d at 825 (citing
State v. Adel, 136 Wash. 2d 629, 632, 965 P.2d 1072 (1998)). The scope of protection
encompasses three distinct aspects: (1) it protects against a second prosecution for the
same offense after acquittal, (2) it protects against a second prosecution for the same
offense after conviction, and (3) it protects against multiple punishments for the same
offense. Id. Ms. Sandvig alleges her convictions violate the third aspect of double
jeopardy.
"When a person is charged with violating the same statutory provision a number
of times, multiple convictions can withstand [a] double jeopardy challenge only if each is
a separate 'unit of prosecution."' State v. Turner, 102 Wash. App. 202, 206, 6 P.3d 1226
(2000); State v. Hall, 168 Wash. 2d 726, 730, 230 P.3d 1048 (2010); see also Reeder, 184
Wash. 2d at 825 (quoting Adel, 136 Wash. 2d at 634). The unit of prosecution encompasses
the entire scope of the criminal act as the act is defined by the legislature. Id. The
approach to analyzing the unit of prosecution is well settled:
[T]he first step is to analyze the statute in question. Next, we review the
statute's history. Finally, we perform a factual analysis as to the unit of
prosecution because even where the legislature has expressed its view on
the unit of prosecution, the facts in a particular case may reveal more than
one "unit of prosecution" is present.
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State v. Varnell, 162 Wash. 2d 165, 168, 170 P.3d 24 (2007).
A person is guilty of theft in the first degree if she commits theft of property
"which exceed(s) five thousand dollars in value." RCW 9A.56.030(1)(a). "Theft" is the
wrongful exertion of "unauthorized control over the property ... of another ... with
intent to deprive him or her of such property." RCW 9A.56.020(1)(a). The plain
language of the statutes makes clear that the unit of prosecution for first degree theft is
the unauthorized exertion of control over the property of another which exceeds $5,000 in
value. See Turner, 102 Wash. App. at 208.
Despite this, Ms. Sandvig argues that Washington's first degree theft statute does
not define the unit of prosecution and is therefore ambiguous as to whether multiple acts
of theft which are part of an ongoing plan can be punished separately. In support of this
argument, she cites Turner, 102 Wash. App. 202.
In Turner, the State charged the defendant, who had stolen from his employer in
several different ways, with multiple counts of first degree theft. It achieved multiple
first degree theft charges by aggregating transactions by "schemes or plans," charging
e.g., theft of funds from a payroll account as one scheme, theft from nonpayroll accounts
as another, and unauthorized use of credit cards as a third. 102 Wash. App. at 207. The
court determined that Washington's theft statute "is ambiguous as to whether multiple
theft schemes or plans over the same period of time and against the same victim may be
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No. 32599-1-111
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punished separately." Id. at 211. Applying the rule oflenity, the court concluded that
Mr. Turner's convictions violated double jeopardy principles. Id. at 209.
Without overruling Turner, the Washington State Supreme Court in Reeder
determined that the first degree theft statute was not ambiguous as it relates to the ability
to charge a defendant with separate transactions occurring at separate times. It concluded
that double jeopardy was not implicated where the defendant was charged with 14
individual counts of first degree theft, based on 14 separate transactions, which occurred
on separate occasions over a span of 16 months. Reeder, 184 Wash. 2d at 829-30.
Here, like the defendant in Reeder, each of the 30 counts that Ms. Sandvig was
convicted of occurred at separate times. The information alleged that on 30 distinct
occasions, Ms. Sandvig stole property worth over $5,000 in value. The information
alleged the specific date of each transaction. It was within the prosecuting attorney's
discretion to charge Ms. Sandvig with the 30 counts. Id. at 828. ("Prosecuting attorneys
generally have discretion in deciding whether to aggregate the crimes or to charge them
separately."). 3
3
To the extent Ms. Sandvig is arguing that under State v. Dash, 163 Wash. App. 63,
259 P.3d 319 (2011) her thefts should constitute a single taking because they make up a
single continuing impulse, the Reeder court rejected this argument. Reeder, 184 Wash. 2d
at 829-30 (noting that the issue in Dash was whether a defendant could be convicted of
successive takings when the jury was not required to determine at what point the
defendant's criminal impulse terminated and, therefore, it was unknown whether the jury
convicted the defendant on criminal acts outside of the statute of limitations).
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Exceptional sentence
Ms. Sandvig next challenges the court's imposition of an exceptional sentence.
Sentences must generally fall within the standard sentence range established by
the Sentencing Reform Act of 1981. RCW 9.94A.505(2)(a)(i). The court may impose a
sentence outside the standard range for an offense if it finds "that there are substantial
and compelling reasons justifying an exceptional sentence." RCW 9.94A.535. An
aggravated sentence is appropriate when certain aggravating factors have been
determined. Id.
The court found the existence of two aggravating factors justifying an exceptional
sentence of 90 months incarceration. It relied on the facts that: ( 1) Ms. Sandvig
committed multiple current offenses and her high offender score resulted in some of the
current offenses going unpunished, and (2) "the current offense was a major economic
offense because it involved multiple incidents per victim, it involved actual monetary loss
substantially greater than typical for the offense, and the defendant used her position of
trust, confidence, or fiduciary responsibility to facilitate the commission of the current
offense." CP at 94.
We review ( 1) whether the record supports the finding on the aggravating
circumstances under the clearly erroneous standard, (2) whether, as a matter of law, the
reasons justify an exceptional sentence under a de novo standard, and (3) whether the
sentence is clearly excessive or too lenient under an abuse of discretion standard. State v.
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Hale, 146 Wash. App. 299, 307-09, 189 P.3d 829 (2008); State v. Law, 154 Wash. 2d 85, 93,
110 P.3d 717 (2005). "[T]he sentencing judge's reasons for imposing ... a sentence
outside the presumptive range" must "' take into account factors other than those which
are necessarily considered in [determining] the presumptive range for the offense.'"
State v. Fisher, 108 Wash. 2d 419, 423, 739 P.2d 683 (1987) (quoting State v. Nordby, 106
Wash. 2d 514, 518, 723 P .2d 1117 (1986)).
Ms. Sandvig argues that the court erred in relying on the aggravating factor that
the crime was a "major economic offense" because it involved multiple incidents per
victim, a fact already taken into account through the range associated with her offender
score. But as the State points out, while the offender score-based range takes into
consideration 10 incidents, it fails to account for the other 20. And the court determined
that the offense was a major economic offense for the additional reasons that "[t]he
defendant was the office manager/bookkeeper for the business and did enjoy a position of
trust, which she used in order to take the money and to evade detection over a course of
years", "[t]he state has alleged an amount in excess of $500,000", and "[t]he crime
occurred over a course of over two years." CP at 94-95.
Ms. Sandvig also argues that the exceptional sentence is clearly excessive.
Pointing to exceptional sentences imposed in several reported cases in which the
prosecution charged only one count for multiple thefts, she makes the novel argument
that it is only where the prosecutor has conservatively charged a single count that the
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No. 32599-1-III
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court reasonably adjusts the sentence for the crime's severity by imposing an exceptional
sentence. Because the State charged 30 counts in this case, she argues, an exceptional
sentence was excessive.
Ms. Sandvig's argument is not persuasive. The presumptive range for an
individual convicted of first degree theft with an offender score of nine is 43-57 months,
and Ms. Sandvig stipulated to the existence of facts supporting the aggravating factors.
While she may have been charged with 30 counts, she committed even more separate
thefts, and most of the 30 incidents charged were going unpunished because of Ms.
Sandvig's high offender score. The court did not abuse its discretion.
Monthly restitution payments
Ms. Sandvig argues that the trial court abused its discretion in ordering her to
make minimum monthly payments of $100 in restitution upon her release from
incarceration. A court is required to order restitution "whenever the offender is convicted
of an offense which results in injury to any person or damage to or loss of property."
RCW 9.94A.753(5).
The court shall then set a minimum monthly payment that the offender is
required to make towards the restitution that is ordered. The court should
take into consideration the total amount of the restitution owed, the
offender's present, past, and future ability to pay, as well as any assets that
the offender may have.
RCW 9.94A.753(1). We review a trial court's award of restitution for abuse of
discretion. State v. Davison, 116 Wash. 2d 917, 919, 809 P.2d 1374 (1991).
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No. 32599-1-III
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The court properly inquired into Ms. Sandvig's ability to pay: "I'm just assuming
that after your release from confinement you will be able to work. There's nothing
preventing you, except for this (inaudible). Is that accurate?" RP at 73. Further, Ms.
Sandvig indicated several times that she hoped to make amends. A minimum monthly
payment of $100 is not untenable. The court did not abuse its discretion.
LFOs
For the first time on appeal, Ms. Sandvig challenges the trial court's finding that
she has the present or likely future ability to pay discretionary LFOs.
As a preliminary matter, we consider whether to accept review of Ms. Sandvig's
contention that the trial court failed to comply with RCW 10.01.160(3), when Ms.
Sandvig made no objection to the finding that she was able to pay the costs imposed at
the time of sentencing and thereby failed to preserve a claim of error. RAP 2.5(a); State
v. Blazina, 182 Wash. 2d 827, 833, 344 P.3d 680 (2015) ("[u]npreserved LFO errors do not
command review as a matter of right"). "[A] defendant has the obligation to properly
preserve a claim of error" and "appellate courts normally decline to review issues raised
for the first time on appeal." Id. at 830, 834. The rationale for refusing to review an
issue raised for the first time on appeal is well settled: issue preservation helps promote
judicial economy by ensuring "that the trial court has the opportunity to correct any
errors, thereby avoiding unnecessary appeals." State v. Robinson, 171 Wash. 2d 292, 304-
05, 253 P.3d 84 (2011) (citing State v. Scott, 110 Wash. 2d 682, 685, 757 P.2d 492 (1988)).
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No. 32599-1-III
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Ms. Sandvig unquestionably waived her right to appeal the trial court's finding
and imposition of discretionary LFOs. In fact, she acknowledged that she wished to
make amends for her crime. Despite her waiver, we enjoy discretion to make an
exception to the general requirement of issue preservation. In this case, because the
sentencing court commented on the unlikelihood of Ms. Sandvig's ability to pay, we
exercise our discretion to review the issue.
RCW 10.01.160(3) provides in part, that a court "shall not order a defendant to
pay costs unless the defendant is or will be able to pay them. In determining the a:111ount
and method of payment of costs, the court shall take account of the financial resources of
the defendant." In order to comply with the statute, an individualized inquiry must be
made on the record. Blazina, 182 Wash. 2d at 838. Among the important factors the court
must consider are "a defendant's other debts, including restitution." Id. A trial court's
finding that a defendant has the "' resources and ability to pay is essentially factual and
should be reviewed under the clearly erroneous standard.'" State v. Bertrand, 165 Wn.
App. 393, 404 n.13, 267 P.3d 511 (2011) (quoting State v. Baldwin, 63 Wash. App. 303,
312, 818 P.2d 1116, 837 P.2d 646 (1991)).
Here, the court raised the issue of Ms. Sandvig's ability to pay and observed that
she would likely never be able to repay the restitution that she owes. Following Blazina's
directive that restitution and other debts be considered, it was clearly erroneous for the
trial court to impose discretionary costs.
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No. 32599-1-111
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In its brief, the State asked that this court, in the interest of judicial economy and
efficiency, strike the $250 in discretionary costs rather than remand for resentencing. We
accept the suggestion and remand for the limited purpose of striking the $250 in
discretionary LFOs imposed by the court.
We affirm the adjudication and remand for the sole purpose of striking the $250 in
discretionary LFOs.
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.
WE CONCUR:
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