State v. Soderberg

• Decision Date: 28 June 2022
• Docket Number: 38111-1-III
• Parties: STATE OF WASHINGTON, Respondent, v. MARTIE M. SODERBERG also known as MARTIE MARIE MAXWELL, Appellant.
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Respondent, v. MARTIE M. SODERBERG also known as MARTIE MARIE MAXWELL, Appellant.

No. 38111-1-III

Court of Appeals of Washington, Division 3

June 28, 2022

UNPUBLISHED OPINION

FEARING, J.

This court previously affirmed an attempted murder conviction against appellant Martie Soderberg. Soderberg had hired a friend to slay her husband Russell. Soderberg now appeals the sentence imposed for a later arson conviction resulting from an earlier burning of the home and personal property shared with her husband. She argues that the superior court should have imposed her sentence for arson to run concurrently with the earlier sentence for attempted murder. She also contends insufficient evidence supported an aggravator for domestic violence. We disagree with both arguments and affirm Soderberg's sentence.

FACTS

In 2013, appellant Martie Soderberg resided in Medical Lake with her husband and their two children. The Soderberg family rented a trailer.

Over Labor Day weekend, in 2013, the Soderberg family traveled to Yakima for a family reunion. At around 2:00 a.m. on Monday September 2, a family friend called Russell and Martie Soderberg and informed the couple that their trailer was aflame. When the Soderbergs returned home later that morning they discovered all of their personal possessions destroyed.

Medical Lake Fire Department Chief Jason Mayfield observed burn marks around the trailer's air conditioning unit. Chief Mayfield concluded that the trailer fire resulted from an electrical failure. During the arson and theft trial, which occurred in 2021, Mayfield acknowledged that he lacked experience in investigating fires in 2013.

A renter's insurance policy covered damage to Martie and Russell Soderberg's belongings. Martie filed a claim with the insurance company. At the behest of the insurer, fire investigator Michael Zambryski examined the Soderberg trailer. Zambryski opined that the fire had possibly been caused deliberately, but he could not conclude arson occurred on a probable basis. The Soderbergs recovered $75,000 from their insurance company in settlement of the claim.

In the summer of 2016, Martie Soderberg contacted Dennis Bjerke to kill Russell Soderberg. State v. Soderberg, No 36132-2-III, slip op. at 2 (Wash Ct. App. Jan. 28, 2020) (unpublished), https://www.courts.wa.gov/opinions/pdf/361322_ord.pdf. Soderberg had known Bjerke for fifteen years. State v. Soderberg, No. 36132-2-III, slip op. at 2. Bjerke rejected Martie's entreaty to kill Russell. On October 11, 2016, Soderberg next solicited high school friend, Martin Drake, to slay Russell. State v. Soderberg, No. 36132-2-III, slip op. at 2.

On October 11, 2016, Martin Drake anonymously contacted law enforcement to report a potential murder. State v. Soderberg, No. 36132-2-III, slip op. at 2-3. Drake met with Spokane County Deputy Sheriff Gavin Pratt, to whom Drake divulged Martie Soderberg's plan to murder Russell. State v. Soderberg, No. 36132-2-III, slip op. at 3.

On October 12, 2016, while investigating Martie Soderberg for attempted murder, law enforcement obtained a search warrant authorizing Martin Drake to wear a recording device and record conversations with Soderberg. During a recorded conversation with Drake, Soderberg referenced the Medical Lake trailer fire. Soderberg also mentioned Dennis Bjerke's involvement in the fire.

Dennis Bjerke testified at the arson trial pursuant to a plea agreement. He averred that Martie Soderberg and he planned to burn the Soderberg trailer about one week before Bjerke lit the flame. Soderberg and Bjerke were engaged in an affair. Soderberg offered Bjerke no money in exchange for his deed. Bjerke did as she requested.

After the Soderberg family left Medical Lake on Labor Day weekend 2013, Dennis Bjerke entered the unlocked trailer and retrieved hairspray and a lighter planted by Soderberg. Bjerke squirted the hairspray and flipped the lighter to ignite the Soderbergs' curtains, bedding, and clothing.

The State of Washington earlier charged Martie Soderberg with attempted murder in the first degree and solicitation to commit murder in the first degree. State v. Soderberg, No. 36132-2-III, slip op. at 13 (2020). Following a trial in 2019, the jury found Martie guilty as charged. State v. Soderberg, No. 36132-2-III, slip op. at 16. The trial court sentenced her to 180 months' confinement. State v. Soderberg, No. 36132-2-III, slip op. at 17. This court affirmed Martie's convictions on appeal. State v. Soderberg, No. 36132-2-III, slip op. at 34.

PROCEDURE

On March 15, 2021, the State of Washington also charged Martie Soderberg in a separate proceeding with arson in the first degree and theft in the first degree. The State alleged that the arson constituted domestic violence, because Soderberg committed it against a "family or household member," Russell Soderberg. Clerk's Papers at 80.

During her arson trial testimony, Martie Soderberg denied planning to burn her rental trailer. Soderberg denied providing Dennis Bjerke aerosol hairspray or a lighter for the purpose of torching her home. She averred that, in 2016, Bjerke informed her that he had started the trailer fire. She had been unaware of Bjerke's involvement. Soderberg testified that Bjerke requested she pay him $10,000. According to Soderberg, she did not report Bjerke's conduct to law enforcement due to threats from Bjerke.

On March 17, 2021, the jury found Martie Soderberg guilty of arson in the first degree and theft in the first degree. The jury further found that Soderberg committed arson against Russell Soderberg, a family or household member.

On March 24, 2021, the trial court sentenced Martie Soderberg to 36 months' confinement on the first degree arson charge and 3 months' confinement on the first degree theft charge. The court ordered that both counts be served concurrently. The court further ordered that Soderberg's current sentence run consecutively with her sentence imposed in the earlier attempted murder case.

LAW AND ANALYSIS

On appeal, Martie Soderberg challenges her sentence and domestic violence aggravator. She contends the superior court erred when imposing her current sentence for arson and theft consecutively with the sentence imposed for attempted murder. She challenges the sufficiency of the evidence for her domestic violence sentencing aggravator.

Consecutive Sentences

Martie Soderberg argues that the superior court effectively imposed an exceptional aggravated sentence in the pending prosecution because it ordered her 36-month sentence for arson to run consecutively to her 180-month sentence for attempted murder and solicitation to commit murder. Soderberg contends that pursuant to RCW 9.94A.589, the court exceeded its authority by ordering both sentences to run consecutively, not concurrently. She further faults the court for not entering findings of fact supporting an exceptional sentence.

The State maintains that RCW 9.94A.589(3) permitted the court to order Martie Soderberg's arson sentence to run consecutively to her attempted murder sentence, because she had not begun serving her sentence for the attempted murder conviction at the time of sentencing. We agree with the State that the sentencing court possessed authority to impose consecutive sentences. Therefore, the superior court did not impose an exceptional sentence, and we need not assess the sufficiency of any findings for an exceptional sentence.

Former RCW 9.94A.589 (2002), a critical section of Washington's Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW, controls. The statute reads, in pertinent part:

(1)(a) Except as provided in (b) or (c)of this subsection, whenever a person is to be sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score: PROVIDED, That if the court enters a finding that some or all of the current offenses encompass the same criminal conduct then those current offenses shall be counted as one crime. Sentences imposed under this subsection shall be served concurrently. Consecutive sentences may only be imposed under the exceptional sentence provisions of RCW 9.94A.535. "Same criminal conduct," as used in this subsection, means two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim. This definition applies in cases involving vehicular assault or vehicular homicide even if the victims occupied the same vehicle. ....

(3) Subject to subsections (1) and (2) of this section, whenever a person is sentenced for a felony that was committed while the person was not under sentence for conviction of a felony, the sentence shall run concurrently with any felony sentence which has been imposed by any court in this or another state or by a federal court subsequent to the commission of the crime being sentenced unless the court pronouncing the current sentence expressly orders that they be served consecutively.

(Emphasis added.) RCW 9.94A.525(1) defines "current offenses" for purposes of the SRA:

A prior conviction is a conviction which exists before the date of sentencing for the offense for which the offender score is being computed. Convictions entered or sentenced on the same date as the conviction for which the offender score is being computed shall be deemed "other current offenses" within the meaning of RCW 9.94A.589.

Martie Soderberg emphasizes the language in RCW 9.94A.589(3) and relates the language demanding a concurrent sentence to subsection (1) of this statute. In turn, Soderberg stretches her reading of RCW 9.94A.589 to contend a consecutive sentence is...