State v. Oxborrow

Decision Date14 August 1986
Docket NumberNo. 51339-2,51339-2
Citation106 Wn.2d 525,723 P.2d 1123
Parties, 55 USLW 2138 STATE of Washington, Respondent, v. Kenneth D. OXBORROW, Appellant.
CourtWashington Supreme Court

Winston & Cashatt, Robert H. Whaley, Robert A. Dunn, Spokane, for appellant.

Paul Klasen, Grant County Pros., Ephrata, for respondent.

DURHAM, Justice.

Kenneth D. Oxborrow challenges the trial court's imposition of consecutive 10- and 5-year prison terms under the Sentencing Reform Act of 1981 (the SRA), RCW 9.94A.010 et seq., for the crimes of first-degree theft and violation of a cease and desist order in connection with the sale of securities. Oxborrow was sentenced for activities related to a pyramid scheme in which he defrauded investors of over $58 million. Oxborrow claims that the sentences imposed are clearly excessive, that the trial court lacked authority to impose consecutive sentences, and that the trial court relied on impermissible evidence at the sentencing hearing. We affirm the sentences of the trial court on all counts.

I

In 1979, Oxborrow and allegedly two other persons started an investment business under the name Wheatland Investment Company. Oxborrow represented to potential investors that he would place their monies into the commodities and futures markets and promised a return of approximately 2 percent per week on their investments. As Oxborrow attracted more and more investors, he began to pay off prior investors with the money obtained from newer investors, creating an elaborate pyramid scheme. In all, Oxborrow obtained over $58 million, of which only $45 million was returned to the investors.

At most, Oxborrow placed only 10 percent of his investors' monies into the commodities and futures markets. He appropriated a large portion of the remainder to satisfy his own extravagant tastes. During this period, he purchased two Rolls-Royce automobiles, a Cadillac limousine, several airplanes and an oceanside resort cabin worth several hundred thousand dollars. He decorated his office and home with fine leather furniture, expensive antiques and imported Chinese rugs. Other portions of his investors' monies were used to cover past debts and to finance his own private business ventures.

Oxborrow's scheme attracted between 900 and 1,200 unsuspecting investors. They were drawn from a vast geographical base, including at least 15 counties in Washington, as well as parts of California, Idaho, Montana and Oregon. While some of the early investors made a profit, the majority lost money, and individual losses ranged as high as $2.4 million. Over 500 investors lost everything they had invested. Oxborrow's victims included pensioners, the elderly and the blind. He allegedly gained the confidence of some investors by making a show of his own supposedly ethical and honest behavior; large pictures of Jesus and other Christian items were on prominent display throughout his home and office.

On August 2, 1984, Oxborrow was served with a cease and desist order which directed him to stop selling or offering for sale any unregistered securities. This order was aimed at Oxborrow's investment scheme. Oxborrow ignored the order and ultimately accepted an additional $1 million from various investors. However, near the end of August, when he saw that he would be unable to pay back all his investors, he approached an attorney for advice. His attorney contacted the prosecuting attorneys for both the United States and Grant County to discuss Oxborrow's investment scheme and soon commenced plea bargaining. For ease of prosecution, the Grant County Prosecuting Attorney was designated to represent the combined interests of prosecutors from the 15 affected Washington counties.

On October 31, 1984, Oxborrow pled guilty to theft in the first degree, RCW 9A.56.020(1)(a), and to willful violation of a cease and desist order concerning the sale of securities, RCW 21.20.390, by defrauding approximately 51 investors of over $1 million subsequent to July 1, 1984. 1 Under the SRA, the presumptive sentence ranges for these crimes are 0-90 days and 0-12 months respectively, since Oxborrow had no previous criminal history. RCW 9.94A.120(6), 9.94A.320. The statutory maximum sentences are 10 years in each case. RCW 9A.20.020(1)(b), 9A.56.030(2), 21.20.400. The Grant County Prosecutor recommended that Oxborrow serve concurrent 10- and 5-year sentences for the two crimes, for a total term of 10 years. Instead, the trial court sentenced Oxborrow to consecutive 10- and 5-year sentences for a total term of 15 years.

Oxborrow appeals these sentences, claiming that they are "clearly excessive" under the SRA, and that the trial court had no authority to impose consecutive sentences under the SRA. Finally, Oxborrow claims that the trial court violated the SRA and denied him his constitutional right to due process of law by considering impermissible evidence both prior to and during his sentencing hearing. We deal with each of these contentions in turn.

II

The Sentencing Reform Act of 1981 created presumptive sentencing ranges for most felonies based on the seriousness of the crime and the offender's criminal history. RCW 9.94A.320-.360. The sentencing court may impose any sentence within the presumptive range that it deems appropriate. RCW 9.94A.370. However, the court may also impose a sentence outside the range (an exceptional sentence) if it finds, "considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence." RCW 9.94A.120(2). The SRA provides a nonexclusive list of aggravating and mitigating factors which the sentencing court may consider in imposing an exceptional sentence. RCW 9.94A.390.

Either the defendant or the State may appeal an exceptional sentence. RCW 9.94A.210(2). The appellate court is to review the sentence as set out in RCW 9.94A.210(4):

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

(Italics ours.) The pertinent provision of RCW 9.94A.210(4) is subsection (b). 2 As Oxborrow readily admits, the trial court's reasons for going outside the standard range are supported by the record and these reasons also unquestionably justify the imposition of an exceptional sentence; thus, subsection (a) is inapplicable. The issue here is if the duration of Oxborrow's exceptional sentence was justified, or, as Oxborrow argues, was "clearly excessive".

The SRA does not define the term "clearly excessive" nor otherwise explicitly indicate the standard of review to be used in determining if a particular sentence is "clearly excessive". However, three important sources--the language of the SRA itself, the express recommendations of the Sentencing Guidelines Commission, and the Washington courts' previous interpretation of identical language in the Juvenile Justice Act--clearly indicate that the sentencing court's decision regarding length of an exceptional sentence should not be reversed as "clearly excessive" absent an abuse of discretion. We hereby adopt that standard of review.

First, RCW 9.94A.010 provides in pertinent part:

The purpose of [the SRA] is to make the criminal justice system accountable to the public by developing a system for the sentencing of felony offenders which structures, but does not eliminate, discretionary decisions affecting sentences ...

(Italics ours.) The SRA provides for structured decisions by requiring that any exceptional sentence be based on "substantial and compelling reasons" which justify going outside the standard range. RCW 9.94A.120(2), 9.94A.210(4)(a). Once this requirement has been met, however, the sentencing court is permitted to use its discretion to determine the precise length of the exceptional sentence. RCW 9.94A.390 provides a nonexclusive list of factors "which the court may consider in the exercise of its discretion to impose an exceptional sentence." (Italics ours.) The drafters of the statute recognized that "not all exceptional fact patterns can be anticipated", Washington Sentencing Guidelines Comm'n, Implementation Manual § 9.94A.390, Comment (1984), and that the sentencing court must be permitted to tailor the sentence to the facts of each particular case.

Second, the Sentencing Guidelines Commission, created by the Legislature in 1981 to develop the new sentencing standards, left no doubt as to standard of review it felt appropriate for determining when an exceptional sentence was clearly excessive:

If the court sentences outside the standard range, it shall set forth its justification for doing so in written findings and conclusions, and any sentence outside the standard range shall be subject to review only for abuse of discretion.

(Italics ours.) Washington Sentencing Guidelines Comm'n, Report to the Legislature 51 (Jan. 1983).

Third, the Washington courts have considered similar language in construing the Juvenile Justice Act of 1977. That act, like the Sentencing Reform Act of 1981, provides that sentences may be reversed if they are "clearly excessive". RCW 13.40.230(2)(b). In State v. Strong, 23 Wash.App. 789, 794, 599 P.2d 20 (1979), the court stated:

The term "clearly excessive" is not defined in the Juvenile Justice Act of 1977 and, therefore, must be given its plain and ordinary meaning. Action is excessive if it "goes beyond the usual, reasonable, or lawful limit." Thus, for action to be clearly excessive, it must be shown to be clearly unreasonable, i.e., exercised on untenable grounds or for untenable reasons, or an action that no reasonable person would have taken.

(Citations omitted.) We hold that a similar interpretation is to be given the words "clearly...

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