Opinion
Court of Appeals No. A-12492 No. 6400
11-16-2016
AGNES P. FRANCISCO, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Susan Orlansky, Reeves Amodio LLC, Anchorage, for the Appellant. A. Andrew Peterson, Assistant Attorney General, Office of Special Prosecutions, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3AN-14-10591 CR MEMORANDUM OPINION Appeal from the Superior Court, Third Judicial District, Anchorage, William Morse, Judge. Appearances: Susan Orlansky, Reeves Amodio LLC, Anchorage, for the Appellant. A. Andrew Peterson, Assistant Attorney General, Office of Special Prosecutions, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. PER CURIAM.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
In February 2013, state and federal officials began investigating Good Faith Services, LLC — a company providing health and long-term care services through the federal Medicaid program. Investigators determined that the company and its employees had committed widespread Medicaid fraud through inflated billing and illegal referral agreements. As a result of the investigation — which revealed over $2 million in fraudulent Medicaid billing — the State successfully prosecuted approximately fifty individuals for medical assistance fraud.
Agnes P. Francisco was part-owner of Good Faith Services and was in charge of the company's daily operations. For her role in the company's fraudulent activities, Francisco pled guilty under a Criminal Rule 11 plea agreement to one count of attempted medical assistance fraud, a class C felony. As part of the plea agreement, Francisco stipulated to the statutory aggravator defined in AS 12.55.155(c)(16) — that her "conduct was designed to obtain substantial pecuniary gain and the risk of prosecution and punishment for the conduct is slight." Sentencing was otherwise left open to the discretion of the sentencing judge.
AS 47.05.210(a)(1); AS 11.31.100(d)(4).
Francisco and the State submitted a stipulated statement of facts for sentencing. In this statement, Francisco admitted to committing fraud in "multiple ways" and contributing to a "culture of criminality" at Good Faith Services. First, she engaged in "travel billing" by authorizing her employees to submit false timesheets for time periods when either employees or clients were traveling without permission from the State. Second, she authorized employees to fraudulently inflate the number of services provided to clients for purposes of over-billing the State. Third, she admitted to employing service providers who had not submitted to legally required background checks. Finally, she admitted to unlawfully paying "referral fees" to service providers if they chose to bring their business to her company. Overall, she admitted to defrauding the State of over $1.5 million during a six-year period.
As a first felony offender, Francisco faced a presumptive range of 0 to 2 years' imprisonment, but, based on the aggravator, the judge was authorized to impose up to 5 years' imprisonment.
Former AS 12.55.125(e)(1) (2014), later amended by Ch. 36, § 90, SLA 2016 ("S.B. 91").
See AS 12.55.155(a)(1); former AS 12.55.125(e) (2014).
The prosecutor proposed a sentence of 3 years with 2 years suspended (1 year to serve). The defense proposed a sentence of 90 days to serve, emphasizing Francisco's remorse for what had happened.
The sentencing judge, Superior Court Judge William Morse, imposed a sentence of 4 years' imprisonment with 1 year suspended (3 years to serve). The judge also imposed a $50,000 fine, the maximum fine available.
The judge based his sentence on his conclusion that, in white collar crimes such as this one, general deterrence and community condemnation were the most significant of the Chaney sentencing criteria. The judge described Francisco's company, Good Faith Services, as a "cesspool of fraud" and emphasized the degree of her complicity in the fraud, as evidenced through the stipulated set of facts. The judge also noted that others in the Medicaid service-provider industry were observing the outcome in Francisco's case, and the judge explained that he found it necessary to "send[] a message to the community" through Francisco's sentence.
See State v. Chaney, 477 P.2d 441, 444 (Alaska 1970); AS 12.55.005 (codifying Chaney); see also Alaska Const. Art. I, § 12 (describing the goals of criminal administration as "the need for protecting the public, community condemnation of the offender, the rights of victims of crimes, restitution from the offender, and the principle of reformation").
On appeal, Francisco argues that her sentence is excessive because it failed to account for her lack of criminal history, her prospects for rehabilitation, and her remorse. But the record shows that the sentencing judge took these considerations into account and concluded that they were outweighed by the other Chaney criteria, specifically the goals of general deterrence, community condemnation, and reaffirmation of societal norms. The judge's sentencing remarks are in accord with Alaska Supreme Court case law, which emphasizes that a "substantial sentence" is sometimes needed for large-scale white collar crimes in order to fulfill the goals of general deterrence and community condemnation.
See, e.g., Karr v. State, 686 P.2d 1192, 1195 (Alaska 1984) ("The amount of money stolen here was so large that unless a substantial sentence is imposed on [the defendant], it is likely that others would be tempted to perpetrate a similar crime."); Fields v. State, 629 P.2d 46, 53 (Alaska 1981) ("We agree with the state's contention that 'white collar' crimes must be taken seriously, and that sophisticated schemes to defraud should be deterred.").
Francisco contends that her sentence of 4 years with 1 year suspended (3 years to serve) is more than is needed to serve these sentencing goals. She asserts that the community of persons who might be tempted to engage in this type of large-scale Medicaid fraud are typically persons like her who have no prior criminal record and who are terrified by even the idea of incarceration. She therefore argues that any time to serve in this context will act as a deterrent to others, and that 3 years to serve is both unnecessary and excessive.
Francisco also argues that an active prison term is not needed to serve the sentencing goals of general deterrence and community condemnation. Instead, she claims that these goals would be equally well served by large amounts of community work service. Moreover, Francisco contends, this type of sentence would have the added benefit of costing less money to the State and ensuring that she will be able to start paying her restitution and fines sooner.
But these same arguments were made to the sentencing judge, and he was unpersuaded that such a lenient sentence would be appropriate in this case. In rejecting these arguments, the sentencing judge focused on the stipulated set of facts and Francisco's self-admitted conduct in a comprehensive system of fraud that permeated almost every part of her company.
As an appellate court, we review a sentence for excessiveness under the "clearly mistaken" standard of review, a deferential standard that "implies a permissible range of reasonable sentences which a reviewing court, after an independent review of the record, will not modify." This standard is founded on two concepts: "first, that reasonable judges, confronted with identical facts, can and will differ on what constitutes an appropriate sentence; [and] second, that society is willing to accept these sentencing discrepancies, so long as a judge's sentencing decision falls within a permissible range of reasonable sentences."
McClain v. State, 519 P.2d 811, 813 (Alaska 1974).
Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997) (internal quotations omitted).
We have independently reviewed the sentencing record in this case. The sentencing judge's findings regarding Francisco's involvement in her company's "cesspool of fraud" are well supported by the record. And as noted earlier, the judge's sentencing remarks and imposition of 3 years to serve are also in accord with the Alaska Supreme Court's case law on this kind of large-scale white collar crime.
See Karr, 686 P.2d at 1195; Fields, 629 P.2d at 53.
Although we acknowledge that a different judge might have imposed a different sentence with less active jail time, we conclude that the sentence imposed in Francisco's case is still within the permissible range of sentences that a reasonable judge would impose under these circumstances and is therefore not clearly mistaken.
McClain, 519 P.2d at 813. --------
We accordingly AFFIRM the judgment of the superior court.