State v. Elliott

• Decision Date: 17 March 2020
• Docket Number: No. 52564-0-II,52564-0-II
• Parties: STATE OF WASHINGTON, Appellant, v. PAUL TAYLOR ELLIOTT, Respondent.
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Appellant, v. PAUL TAYLOR ELLIOTT, Respondent.

No. 52564-0-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

March 17, 2020

UNPUBLISHED OPINION

WORSWICK, J. — Paul Taylor Elliott pleaded guilty to one count of first degree theft and 16 counts of first degree identity theft. Under the multiple offense policy, the trial court calculated Elliott's offender score as 16.

At sentencing, Elliott requested an exceptional sentence below the standard range. The State requested that Elliott be sentenced within the standard range on each count. The standard sentence range was 43 to 57 months for first degree theft, and 63 to 84 months for first degree identify theft. The trial court imposed an exceptional sentence downward of 30 months on each count, to run concurrently.

The State appeals the exceptional sentence downward, arguing that the trial court incorrectly applied the multiple offense policy, incorrectly determined that the application of the multiple offense policy resulted in a sentence that was clearly excessive, and incorrectly relied on commensurate punishment when departing from the standard sentencing range. We affirm Elliott's sentence.

FACTS

Elliott worked as the bookkeeper and office manager for Nichol's Trucking for 12 years. He was responsible for billing, preparing deposit slips, generating invoices, and processing receivables, among other tasks. Elliott was never given permission to use the business credit card.

Elliott stole almost $300,000 from Nichol's Trucking between May 7, 2012 and August 26, 2015, using two different methods. First, Elliott used Nichol's Trucking's credit card 38 times to make payments into his personal Square and PayPal accounts, taking a total of $110,209.71. When the owner questioned Elliott about the Square and PayPal payments, which were mostly expensed as "repairs and services," he told her the businesses in question required payment through Square or PayPal to quickly obtain the parts needed. Clerk's Papers (CP) at 2.

Second, Elliott diverted payments owed by customers to Nichol's Trucking, diverting a total of $188,387.87.¹ Elliott hid the diverted payments by making false entries in the Nichol's Trucking ledgers to show the customers did not have any current amounts due.

During the period of Elliott's thefts, Nichol's Trucking suffered financially. The business struggled to pay for fuel, equipment replacement, and payroll for its 40 employees. The owners of the business discussed the financial situation in front of Elliott. Even after hearing the owners' concerns, Elliott continued his thefts.

The owner asked Elliott for Nichol's Trucking's bank statements, but he did not provide them. After the owner located the bank statements, Elliott resigned. Following his resignation,Elliott sent an e-mail to the owner stating, "If there was anything I could do to make up for the betrayal and wrong I've done, I would gladly do so, but I fear that I have done too much. . . . I have been so incredibly foolish that I would risk everything for feeding an addictive behavior that was destroying me. . . . I am truly sorry for what has happened." Clerk's Papers (CP) at 19. Elliott later admitted to spending much of the money on prostitutes and strippers.

In total, the Tacoma Police Department found that Elliott stole $298,597.58 from Nichol's Trucking over the course of more than 100 separate thefts.² Elliott was ultimately charged with one count of first degree theft and 16 counts of identity theft in the first degree (for his uses of Nichol's Trucking's credit card that were not outside the statute of limitations).

Elliott pleaded guilty to all counts. The standard sentence range for first degree theft, with an offender score of 16, is 43 to 57 months. The standard range for first degree identity theft, with an offender score of 16, is 63 to 84 months.

At sentencing, the State requested a sentence within the standard range, and Elliott requested an exceptional sentence downward. The trial court imposed an exceptional sentence downward, sentencing Elliott to 30 months confinement on each count, to run concurrently, and 12 months in community custody.³ In support of its downward departure, the trial court made findings of fact which included:

. . . .

2. Although Mr. Elliott statutorily qualifies for a First Time Offender Waiver, the facts of this case do not warrant a sentence under the First Time Offender Waiver.

3. The Identity Theft 1st Degree counts were a means of committing the broader theft.

4. The defendants in State v. Oxborrow, 106 Wn.2d 525 (1986) and State v. Branch, 129 Wn.2d 635 (1996) were each convicted of one count of Theft 1st Degree.

. . . .

6. The defendants in Oxborrow and Branch each faced a standard range of 0-90 days.

7. The defendant has no prior criminal history.

8. The defendant in Oxborrow had no criminal history and the defendant in Branch appeared to have no criminal history . . . .

9. The defendant in this case stole approximately $300,000.

10. The defendants in Oxborrow and Branch stole $1,000,000 and $400,000 respectively.

11. There was one victim in this case.

12. In the Oxborrow and Branch cases there were 51 and 180 victims respectively.

13. The defendants in Oxborrow and Branch could each have been charged with additional crimes.

14. All three defendants were in a position of trust.

15. All three defendants' crimes occurred over a period of time.

16. All three defendants stole a large amount of money.

17. The defendants in Oxborrow and Branch each left their cases with an offender score of 1.

18. Mr. Elliott now has an offender score of 9+ going forward.

19. The defendants in Oxborrow and Branch were each sentenced to 120 months and 48 months respectively.⁴

20. Because of the presence of the above mitigating factors, and considering the purposes of the Sentencing Reform Act[ of 1981 (SRA), ch. 9.94A RCW], sentencing within the standard range is not an appropriate sentence.

The trial court's conclusions of law state, in relevant part:

1. That there are substantial and compelling reasons justifying an exceptional sentence outside the standard range. That an exceptional sentence below the standard range is permitted and appropriate pursuant to RCW 9.94A.535(1), RCW 9.94A.010 and the multiple offense policy in RCW 9.94A.535(1)(g) because a presumptive sentence would result in a sentence that is clearly excessive.

. . . .

3. The purpose of the [SRA] in RCW 9.94A.010, particularly subsection 3, is served by providing a departure downward from the standard range in order to issue a punishment commensurate with the punishment imposed on others committing similar offenses.

4. The multiple offense policy in RCW 9.94A.535(1)(g) results in a presumptive sentence that is clearly excessive in light of the purpose of the SRA.

CP at 89-91. The State objected to findings of fact number 3, 4, 6, 8, 10-17, 19, and 20.⁵

ANALYSIS

I. LEGAL PRINCIPLES AND STANDARDS OF REVIEW

A. EXCEPTIONAL SENTENCES UNDER THE SENTENCING REFORM ACT

The SRA generally requires that a sentencing court impose a sentence within the standard sentencing range. RCW 9.94A.505(2)(a)(i). The SRA was designed to provide a system for sentencing that "structures, but does not eliminate, discretionary decisions affecting sentencing." RCW 9.94A.010.

A trial court may only depart from the standard sentence range "if it finds, considering the purposes of [the SRA], that there are substantial and compelling reasons justifying an exceptional sentence." RCW 9.94A.535. If a trial court determines that an exceptional sentence is appropriate, a reviewing court may only reverse the exceptional sentence by finding:

(a) Either that the reasons supplied by the sentencing court are not supported by the record which was before the judge or that those reasons do not justify a sentence outside the standard sentence range for that offense; or (b) that the sentence imposed was clearly excessive or clearly too lenient.

RCW 9.94A.585(4).

RCW 9.94A.585(4) requires courts to ask three questions, each with a different standard of review.

1. Are the reasons given by the sentencing judge supported by evidence in the record? As to this, the standard of review is clearly erroneous.

2. Do the reasons justify a departure from the standard range? This question is reviewed de novo as a matter of law.

3. Is the sentence clearly too excessive or too lenient? The standard of review on this last question is abuse of discretion.

State v. Law, 154 Wn.2d 85, 93, 110 P.3d 717 (2005) (quoting State v. Ha'mim, 132 Wn.2d 834, 840, 940 P.2d 633 (1997), overruled in part on other grounds by State v. O'Dell, 183 Wn.2d 680, 696, 358 P.3d 359 (2015)). Here, the State does not argue that the reasons given by the trial court are not supported by evidence, so our inquiry focuses on the second and third questions. Accordingly, the standard of review is de novo and abuse of discretion, respectively.

B. RCW 9.94A.535(1)(g)

RCW 9.94A.535(1) sets forth a non-exhaustive list of illustrative mitigating factors which a trial court may use to support its decision to impose an exceptional sentence downward. The mitigating factor in dispute in this matter, the operation of the multiple offense policy, originates from 9.94A.535(1)(g):

The court may impose an exceptional sentence below the standard range if it finds that mitigating circumstances are established by a preponderance of the evidence. The following are illustrative only and are not intended to be exclusive reasons for exceptional sentences.. . . .

The operation of the multiple offense policy of RCW 9.94A.589 results in a presumptive sentence that is clearly excessive in light of the purpose of this chapter, as expressed in RCW 9.94A.010.

The "multiple offense policy of RCW 9.94A.589" referenced above contains five subsections. The subsection relevant to this case is 1(a), which generally requires that when a person is sentenced for two or more current offenses, the offender score for each offense be calculated...