State v. Williams

Arizona, Appellee, STATE of WILLIAMS, Appellant.

Herbert Lewis

No. 1 CA-CR 5371. Arizona,

Court of Appeals of 1, Department

Division B.

Dec. Corbin, Robert K. William the Atty. Gen. defendant wrote a check for $50.00 Schafer, Div., III, Counsel, J. deposit. Chief Crim. the initial On December Gen., Glynn, and Joel M. Atty. Asst. Phoe- the defendant made an additional de- nix, appellee. $945.00, for posit using check that was drawn on the Bank of America of Moran, Yuma, A.

Thomas appellant. Creek, Walnut California.1 The defendant eight thereafter wrote checks to various OPINION businesses his account. Although GREER, Judge. record, unclear appears from the it that Seventy year old Herbert Lewis Williams of eight paid by four checks were by was indicted County the Yuma Grand Bank, State and four were returned for Jury 12, 1981, on March for the crimes of insufficient funds.2 The State Bank forgery, felony, a class four in violation of claimed a of total loss The four $956.85. 13-2002(A)(3), theft, and also a returned checks totaled $56.00. class four in felony, violation of A.R.S. Initially, defendant contends that 13-1802(A)(3). 2, 1981, On April pursu- imposition year of two consecutive four to plea agreement, ant a written defendant light sentences was in his excessive of ad guilty pled charges, Williams to the indicted age history vanced and alcoholism. exchange in for the agreement state’s imposition aof sentence within the statuto allege any prior to convictions. The trial ry entirely limit is within the discretion of subsequently court imposed presump- Ferreira, the trial court. State v. 128 Ariz. conviction, tive four sentence for each year 530, (1981). 627 681 Any challenge P.2d they ordered that be served consecu- thereto be carefully must scrutinized be tively. is judge cause the trial in the best position Defendant’s counsel a thereafter filed to evaluate a defendant. v. Gor See State compliance brief in with Anders v. Califor- don, 425, 125 Ariz. 610 P.2d 59 Fur nia, 738, 1396, 386 U.S. 87 S.Ct. 18 L.Ed.2d thermore, we will not disturb a sentence (1967) Leon, 297, 493 v. 104 Ariz. clearly within the limit it statutory unless (1969), P.2d 878 in which he raised as an an excessive and reveals abuse discretion. arguable question issue the of whether the 371, Limpus, v. 625 P.2d 960 128 Ariz. trial court had abused its by discretion im- Becerill, 535, State v. Ariz. (App.1981); posing an Upon excessive sentence. re- of discre (App.1979). 606 P.2d 25 An abuse record, viewing the this court noted an ad- or ca by tion is arbitrariness characterized ditional arguable law, issue of to wit: priciousness, and a failure to conduct whether the sentence imposed by trial rele into the facts adequate investigation 13-116, court was in violation of A.R.S. § Gordon; State sentencing. to State v. vant Arizona’s double punishment statute. An 386, (1978); Patton, 586 P.2d 635 v. 120 Ariz. order was issued requiring both parties Limpus. thereon, address that issue and file briefs ordering the Attorney General’s Office mind, law these rules of in With respond to the issue by raised defend- examination of the sentences we turn to an ant’s necessary initial brief. The facts to a imposed. Although age a defendant’s and a resolution these two issues are as follows. history mitigating are factors alcoholism 2, 1980, On December trial a may defendant which induce a court reduce cases, opened checking in presumptive they account at the State sentence some Parker, in (State Bank), Bank only Arizona are not relevant to be factors 1980, depositing judge may properly $100.00. On looked to. trial December telephone apparently purported 1. A interview 2. The State Bank was with the notified drawer, Spencer, Spencer a Ms. Ann Bank revealed that she of America checks honored, had closed her account with the would not be but not it Bank Amer- until had June, already paid ica and discarded the checks four of the checks. in prior consider crimes and the criminal char- of the same sort of may conduct. It acter and history case, of the defendant. State be a three million but [dollar] Ellis, (1977); Ariz. 572 P.2d 791 seems to go continue to on and on and on. Sowards, 30, 1981, Tr., April pg. judge 13. The trial (1965). Defendant Williams has an exten- obviously referring to the defendant’s record, sive criminal dating back to 1949 prior Thus, involvement in similar crimes. when he was convicted of assault and sen- upon it is clear the court based its decision thirty tenced to months confinement. In what already we have determined to be an 1950, he was conspiracy convicted of important interest. The court’s de- societal commit larceny and sentenced to thirty arbitrary capricious. cision was neither months confinement. the trial Accordingly, ruling it is our was convicted of transportation unlawful impos- judge did not abuse his discretion a motor vehicle and sentenced to a three ing year impris- consecutive four terms of year prison 1972, term. In he was commit- onment. ted to the Georgia 1974, State Prison. In Turning to the defendant’s second he was committed to the South Carolina argument, he that the contends sentences State Prison for 1976, forgery. In defend- imposed punish violate Arizona’s double ant again was arrested for forgery in South provides, 13-116 ment statute. A.R.S. § Carolina. Finally, defendant was released part: relevant jail from approximately two months prior punish- An act or omission which is made to committing'the crimes herein for almost able in different different sec- ways an identical conviction in California. tions of under may punished the laws be All point indications to the defendant re- both, be may but in no event sentences peating illegal his activities if given the other than concurrent. opportunity. The protection of society the stat- In order to determine whether from gross such a disrespect of legal our violated, the apply ute has we must been system is certainly an aggravating factor Rumsey, v. “identical elements test.” State may which be considered the trial court 427, (1981); v. 130 Ariz. 636 P.2d 1209 determining when length the of sentence to Arnold, 421, (1977); 115 Ariz. 565 P.2d 1282 factor, impose. light In of this we do not 1, Tinghitella, State v. 108 Ariz. 491 P.2d court abused believe the its discretion by test, 834 elimi- Under this we must term, presumptive imposing the even in nate the facts supporting the elements of age. the defendant’s advanced light of charge one and determine whether the facts the defendant’s regard history With remaining support the elements of the oth- alcoholism, no evidence in we find the rec- er charge. intoxicated at the time of he was ord that In Duran, State v. 239, 118 P.2d Ariz. 575 Moreover, assuming even this either crime. 1265 (1978), the defendant was the Admin- on the defendant’s effect factor had istrative Services Officer with the Office required feel it the behavior, we do Registrar the of Contractors. It was his presumptive the than less impose court responsibility to supervise collecting, the de- term. positing and accounting of various funds na the consecutive regard With collected by the state agency. In the course al 13-708 sentences, ture of the of performing duties, his he withheld a sen of consecutive imposition lows for the number of checks deposit from a that was are therefore tences, reasons the provided supposed to be deposited with the State de sentencing In record. set forth on the Department of Finance. When he received revealed court Williams, trial fendant the subsequent deposits, he substituted the sto- report presentence its with the familiarity checks for like len amounts of cash. He following and made the observation: then alter the would “statements of re- reflect an ceipts” to increase in the amount sentences reason for consecutive and a decrease in the of cash amount Williams, extensive, that the record is Mr.

415 Thus, deposited. checks able to with intent to he was ment defraud. v. Max well, disguise temporarily (1964); his embezzlement of Martin, the deposit money. subsequently Ariz.App. He 410 P.2d was altering necessary convicted of It is the thirty-eight (App.1966). counts of that Thus, be public accepted. records and instrument thirty-seven counts of forgery Williams committed the crime of ruling embezzlement. In double the the presented the instant he check to punishment violated, statute was not this employee, regardless bank of whether that, court reasoned “the alteration [of regardless deposit, was ‘statements receipts’] completed was any money. whether he ever received appellant pencil laid down or pen his Thus, Duran, supra, as in State v. and State with the intent to achieve his own unlawful Sutton, supra, elements of the crime purposes. subsequent previous ap- completed prior were de propriation of the separate cash itself embarking upon subsequent fendant’s crime from that of altering the records to Moreover, crime of theft. once the facts up.” cover it Id. at 575 P.2d at 1273. of fraud re supporting elements are In Sutton, 27 Ariz.App. moved, remaining support facts P.2d (App.1976), the defendant was con- crime of theft. Each time the defendant victed possession of one count of aof stolen subsequent eight wrote one of the checks he credit card and two counts of forgery. represented depos he implicitly had determining that punishment double it with the State Bank sufficient funds to violated, statute was not this court conclud- cover the face amount of the F. check.3 ed: Whitney, The of Modern Commercial Law elements of a of possession crime [T]he (1965). And, is Practices it clear the § of a credit card with intent to defraud the sole defendant wrote checks for the were satisfied signing before the actual purpose obtaining of and depriving others of the slips which forger- constituted the property of and services he knew did not ies. belong him.4 to When the forged the name asserts, however, The defendant that the of Mr. Jones to the he slips, sales em- presentation forged of the instrument is the upon separate barked ‘acts’ within the misrepresentation only he made. The dis- meaning of A.R.S. 13-1641. § agrees, apparently sent and the believes Id. at 551 P.2d at 588. unqualified defendant had the to right case, In the instant the elements against write checks the account once it forgery, prescribed of as by 13- forged § A.R.S. was credited with the check. A 2002(A)(3), 1) are: or offering presenting applicable provisions review of the of the (whether 2) not), forged a in Uniform Commercial demonstrates Code strument, 3) with reasoning. intent to defraud. A the of this line of fallacy person commits theft under 13- A.R.S. § The Bank was both a de State 1802(A)(3), 1) 2) when he: ob knowingly, pository collecting and a bank under the another, 3) or services property by tains provisions 44-2605(l)(4). De A.R.S. § a material misrepresentation, 4) means of fendant was a customer of the Williams deprive to person with the intent the 44-2604(A)(5), Bank as defined in State § property such or services. forged the of the check. owner When complete crime of is deposited defendant Williams the bank, one passes either makes or a instru- strong presumption false check with the a representation clearly by paid 3. The made the 4. On the checks that were the payee Bank, opinion payee of the check. We are of the that was individual the victim the representation However, payor the also extends to the each the four checks that check. bank; case, Bank, property paid by in this the State Bank. were the the State money by belong- obtained the defendant ing Bank. the State Instead, likely depos- arose that Bank was for other victims. he merely account, agent any hoping for collection that settlement ited the check to his being bank would advance funds before no- given provisional. for the check was words, forgery. tified that the check was a 44-2610(A). In other unlike the § deposits situation where a cash customer permit Whether a bank will such an ad account, checking deposit into a of a against provisional vance be made check entitle a imme- does not customer to depends upon past credit the customer and diately upon deposit. draw In the Bank, Exchange dealings, American Collins situation, provisional giv- normal credit ville, Cessna, F.Supp. Oklahoma en a depository-collecting bank does (N.D.Okla.1974), merely and is done as a “firm,” payable become and therefore as a by the favor and matter of convenience right, matter of until such time as the bank v. Bank of Davies & Vincent bank. See learns, learned, or should have reasonably (1925). Commerce, 232 P. 880 it had payment received or “final set- case, the Bank chose In the instant tlement” on the payor check from the bank provisional cred upon make an advance or an 44- intermediary However, bank. A.R.S. § it was the defendant. afforded 2622(D)(1). also, See Commercial Uniform not a money; an advance of the bank’s Code, Uniform Laws Annotated 4r-213of- belonging to the defend payment money ficial commentary recog note 10 when it is This becomes clear ant. point At that relationship normally between bank has depository nized that a bank and its a situation: customer becomes that of remedies in such number debtor and creditor principal rather than other Charge 1. back advance 4r-201, agent, Id. at and the note account, the customer’s funds upon right customer does have the to draw 44-2621, or A.R.S. § the account. (check) and demand Keep the item the customer since refund from agency scheme created the code is security interest in the bank has a supported by logic and common sense. It of withdrawals or item to the extent require would be unfair to a bank certainly it. 44- against advances A.R.S. § immediately every presented to cash check 2610(A) 44-2617. and § checking to it one of its account custom- ers, as a matter or to make funds available Thus, any the defendant did not obtain credit, right deposited of once a check is for until such time from the Bank money State for prior depository being paid to the bank against the money advanced as the bank for provides system the check. The code a the as a result of given credit provisional check, the collection of a customer’s speedy forged check. to all offering protection parties while also clear that It should also now be

involved. misrepre in fact make a the did defendant he wrote one every time Williams, sentation each appar Defendant Marshall checks. As Justice eight of the circles, banking appar was ent veteran of v. dissenting opinion in Williams in a stated the Bank was not ently aware that - -, States, S.Ct. U.S. United to, imme probably would not required (1982):5 73 L.Ed.2d 767 Otherwise, forged check. diately cash the check, impliedly drawer In a the certainly forged giving have cashed the he would the with deposit that he has on represents a retreat to search hasty check and made history support legislative majority opinion of the statute did not Although the in Williams finding kiting” a constituted that “check an intricate check a States found that United representation” In making under the statute. kiting a “false scheme did not involve the of however, case, legislature in- violating the purpose instant the the statement” for “false opin- to be included in the defini- tended bad checks a careful review of that § 18 U.S.C. misrepresentation” under “material us to the conclusion that tion of ion leads holding the court’s 13-1802(A)(3). limited to the federal § statute at issue readily apparent It is the felt the therein. court inal Procedure and the equivalent drawee bank funds to the face defendant advised rights Finally, amount the check .... who he was waiving. of all [T]hose accept exchange write or checks in sentencing hearing compli- was held in full goods, undoubtedly services or un- cash ance with the defendant’s constitutional representation derstand that this implicit statutory rights. been made. A with has check is Accordingly, judgment and sentence in expectation paid that it will be hereby of the trial court are affirmed. normal course of A collection. banker

who knew that the drawer did have GRANT, J., concurs. funds on deposit would not credit Judge, FROEB, Presiding dissenting: check to the drawer’s or account reduce it to cash. one count of pled guilty Defendant - -, Id. U.S. at 3098. S.Ct. and was forgery and one count theft Moreover, legislative history of the Ari- terms of four sentenced consecutive zona Criminal supports Code our conclusion. on would affirm the convic- years each. I discussing statute, In Arizona’s theft I forgery tion and sentence on the count. Arizona Criminal Code Commission stated: the conviction and sentence would vacate misrepresentation,” “Material as defined ground on the that sen- the theft count 1800(h), as 13- § A.R.S. § [codified punish- tences on both constitute double 1802(A)(3)], law, present unlike covers ment in violation A.R.S. 13-116. only fact, statements of but also de- simple. The essential facts are Defend- ceptive physical acts use such as the presented forged ant check in the amount false checks. to the Bank of Parker $945.00 Commission, Arizona Criminal Code Arizona deposited checking was his where it 1801(a)(3) Revised Criminal Code com- gave account. bank defendant imme- mentary (1975); at 181 emphasis added. diate he thereafter credit which persuaded We are not by the defendant’s eight persons. wrote cheeks to various Schwartz, reliance on Ariz.App. question There is some as to whether the That case was all paid only bank some of the checks. prior decided Tinghitella, supra, fail, view, my charge In the theft must and, although it recited identical ele- case, whichever is the when the identical test, employed ments analysis a “but for” applied. elements test is strikingly similar to the “transactional test” complete The crime of rejected previously supreme our court. presented check to event, any the intent re deposit. the bank for Defendant was quired to commit each crime is a matter for charged of forgery and convicted in viola- 4, by determination the trier of fact. Id. at 13-2002(A)(3). person tion of A A.R.S. § 491 P.2d at 837. We find no abuse of the forgery commits under this section by implicit court’s discretion its finding that he: an independent the defendant had intent to 1. with intent defraud two commit the crimes herein. presents, accepted 2. offers or whether Finally, this appeal because was institut- not, California, ed pursuant supra, Anders v. 3. a instrument. we further searched have the record Defendant convicted of charged error and fundamental found none. The 13-1802(A)(3). theft in A.R.S. violation § record convinces us that Wil- person A theft under this section commits represented liams was by competent counsel when he: stages proceedings repre- all and is property 1. obtains of another by competent sented counsel appeal. on this plea by was made any misrepre- full 2. means material compliance with the Arizona Rules of Crim- sentation

418 P.2d 1279

3. with to deprive intent him of such property. SCHELLER, Petitioner, Michael K. It should be noted defendant was charged money with from theft the State Parker,

Bank INDUSTRIAL COMMISSION OF persons not the to whom eight were ARIZONA, Respondent, checks written. Thus the charge, any if it validity, has must necessar-

ily relate to of the eight those checks which Agency, Ltd., The Anderson the bank in fact paid. Employer, Respondent view,

In my when the elements of the forgery charge are eliminated under the Fund, Respondent Compensation test, identical elements there is no basis Carrier. upon which theft charge can stand. 2716. No. 1 CA-IC The theft charge supported must be by a finding money paid out Arizona, Appeals Court of bank for the checks was obtained 1, Department C. Division “material misrepresentation.” The only “material misrepresentation” to the bank in Dec. sequence entire ws the upon fraud which the forgery was based. When that is

eliminated, as it must be under the identical test,

elements there is no misrep- “material

resentation” left to sustain the theft

charge.

That this should be so is not surprising in

view of the fact that under A.R.S. 13-2002(A)(3) approximates, dupli- if not

cates, the of theft by misrepresen- offense 13-1802(A)(3)

tation under when-

ever pretense the fraudulent is used to ob-

tain Gerber, or services. property See Arizona,

Criminal p. Law of Schwartz,

I find 14 Ariz.App. (1970) point P.2d 1060

supports my conclusion that the pun- double

ishment statute has been violated. Even

though predates the decision State v.

Tinghitella, (1967), 491 P.2d 834 applies the identical elements test which applied hand,

must be On the here. other Duran, Ariz.

(1978), by the upon majority, relied is distin-

guishable on its facts. conclusion, I would affirm the convic-

tion the forgery and sentence on count and

vacate the conviction and sentence

theft count.

Case Details

Case Name: State v. Williams

Court Name: Court of Appeals of Arizona

Date Published: Dec 14, 1982

Citation: 656 P.2d 1272

Docket Number: 1 CA-CR 5371

Court Abbreviation: Ariz. Ct. App.