Brief Fact Summary.
Defendant plead guilty to first-degree theft and willful violation of a cease-and-desist order. Defendant was sentenced to consecutive ten and five-year terms, totaling 1five years. Defendant appealed his sentences.
Synopsis of Rule of Law.
An exceptional sentence will only be reversed if the trial court’s justifications are inadequate or if the sentence is clearly excessive or lenient.
Kenneth Oxborrow (Defendant) co-founded the Wheatland Investment Company. Defendant told investors that he would place their money into the stock market and promised a large return on their investments. Defendant began to pay off previous investors with money acquired from newer investors, establishing a sophisticated pyramid scheme. Defendant stole millions of dollars for his own use to purchase expensive cars and homes. As a result, over five00 investors lost all of their investments. In August 1984, Defendant was served with a cease-and-desist order, prohibiting him from selling unregistered securities, which he ignored. Realizing he would not be able to pay back the investors, Defendant’s attorney approached the prosecutor’s office to discuss the scheme and a plea. Later, Defendant pled guilty to first-degree theft and willful violation of a cease-and-desist order. The Sentencing Reform Act of 1981 (SRA) created presumptive sentencing ranges for felonies. Under the SRA, the presumptive sentence ranges for Defendant’s crimes were 0-90 days and 0-12 months, respectively, because he had no previous criminal history. The statutory maximum sentences were ten years for each. The statute empowers the sentencing court to impose any sentence within the presumptive range that it considers appropriate and any sentence outside the range, also called an exceptional sentence, if it finds “compelling and substantial reasons” justifying such a sentence. The SRA provides a list of aggravating factors that may be considered by the court, including that the offense was a major economic offense involving: (1) multiple victims; (2) extraordinary monetary loss; (3) sophistication and planning; and (4) the defendant's use of a position of trust to manipulate victims. The prosecutor recommended that Defendant serve concurrent sentences of ten and five years. Instead, Defendant was sentenced to consecutive ten and five-year terms, totaling fifteen years. Defendant appealed his sentences, arguing that they were clearly excessive and that the court did not have authority under the SRA to impose consecutive, rather than concurrent, sentences.
Whether an exceptional sentence will be reversed if the trial court’s justifications are adequate and the sentence is not clearly excessive or lenient.
No. The sentences are affirmed. An exceptional sentence will only be reversed if the trial court’s justifications are inadequate or if the sentence is clearly excessive or lenient.
The sentences were not clearly excessive. However, it is true, as the concurring/dissenting opinion states, that an exceptional sentence that does not exceed twice the length of the presumptive sentence will be less likely to be considered an abuse of discretion upon review than one that closely approaches the statutory maximum.
The fifteen-year sentence is justified; however, the abuse of discretion standard is far too deferential. The court should approve the “doubling rule” to ensure more consistency in sentencing decisions. Such a rule would allow a court to impose an exceptional sentence that is no more than double the presumptive sentence length, unless severe aggravating circumstances are present.
The SRA provides that in order to reverse a sentence outside the sentencing range, the reviewing court must determine either that the sentencing judge’s reasons were not supported by the record or that the sentence imposed was clearly excessive or clearly too lenient. Even though the SRA does not define the term “clearly excessive,” the text itself, recommendations of the Sentencing Guidelines Commission, and previous judicial interpretations of the same language in other sentencing statutes suggest that the sentencing court’s decision relating to the length of an exceptional sentence should not be reversed, unless there has been an abuse of discretion. Here, Defendant’s crimes embody each of the listed aggravating factors, clearly showing this is the exact kind of crime that the legislature meant to punish with a maximum sentence. Defendant’s claim that consecutive sentences were an abuse of discretion is also evaluated using the same standards. Defendant could have been sentenced to consecutive ten-year terms, totaling twenty years, but the trial court imposed a fifteen-year term. Therefore, the sentencing court did not abuse its discretion in imposing an exceptional sentence, and it was acting within its authority in imposing consecutive sentences.