The Mother, the Daughter and Identity Theft

After “Rebecca F.” pled to eight counts of identity theft in violation of West Virginia Code § 61-3-54, and was sentenced “to an effective five-year prison term” and ordered to pay restitution, she appealed.  State v. Rebecca F., 758 S.E.2d 558 (Supreme Court of Appeals of West Virginia 2014).  As to why the opinion does not refer to her by her full name, a footnote says “[w]e adhere to our usual practice in cases involving sensitive facts and do not refer to the parties using their full names.”  State v. Rebecca F., supra. 

The opinion also notes,  that in February of 2011,

a Berkeley County Grand Jury indicted [Rebecca F.] on eleven counts of child abuse with bodily injury in violation of West Virginia Code § 61–8D–3(a) [1996], and eight counts of identity theft in violation of West Virginia Code § 61–3–54 [1998]. The eight counts of identity theft alleged that [she] fraudulently used her fourteen-year old daughter's identity (name, birth date, and social security number) `for the purpose of making financial or credit transactions’ in her daughter's name.

On April 2, 2012, [she] entered an Alford guilty plea to the eight felony counts of identity theft. The State recommended [Rebecca F.] receive a ten-year prison term and pay all of the restitution costs listed in the indictment.  The Circuit Court deferred sentencing the plea agreement and guilty plea were entered so a presentence investigation report could be prepared. The court also ordered that [she] undergo a diagnostic evaluation at the Lakin Correctional Center. After the presentence investigation report and diagnostic evaluation were completed, the Circuit Court held a sentencing hearing on January 14, 2013.

State v. Rebecca F., supra. 

As Wikipedia explains, in entering an Alford plea a defendant concedes that the prosecution would probably be able to prove his/her guilt of the charge(s) beyond a reasonable doubt at trial and therefore enters a guilty plea while maintaining his/her innocence of the charge(s).  In a footnote, the Supreme Court of Appeals explains that “[a]s part of the plea agreement, the remaining felony counts for child abuse with bodily injury were to be scheduled for trial.”  State v. Rebecca F., supra. 

At the sentencing hearing, the trial judge heard the arguments from the lawyers, as

well as statements from [Rebecca F.] and the victim. At the time of the sentencing hearing, the victim had reached the age of majority. The Circuit Court did not follow the State's recommendation that [Rebecca F.] be sentenced to serve a ten-year prison term. Instead, the court sentenced [her] to serve five years in prison. 

Further, the Circuit Court ordered that [she] pay restitution to the following financial institutions: $1,370.32 to Applied Bank; $1,114.98 to Barclay Card UC; $1,232.00 to Zenith Acquisition Corporation; $3,753.00 to Chase Card Services; $630.44 to HSBC Card Services; and $2,842.00 to SST/Columbus Bank and Trust. In addition, the Circuit Court ordered [Rebecca F.] to pay $10,000.00 in restitution to her daughter `because of the attempts and time and the effort she has to make to try to rectify the wrongful credit aspect of [the identity theft].’

State v. Rebecca F., supra.  Rebecca F. then appealed. State v. Rebecca F., supra. 

On appeal, she raised two issues:  She first claimed that the Circuit Court judge erred by sentencing her to five years in prison instead of to probation or “home confinement.” State v. Rebecca F., supra.  She conceded, though, that the sentence was “`within the statutory limits” for identity theft.  State v. Rebecca F., supra.  The Supreme Court of Appeals pointed out that she could have been sentenced to serve five years on each of the eight counts of identity theft to which she pled guilty, which meant she could have been sentenced to forty years in prison.  State v. Rebecca F., supra.  The court held that “[b]ecause it is undisputed that [she] was sentenced within the statutory limits, and . . . the sentence was not based on an impermissible factor, we find the Circuit Court did not abuse its discretion by sentencing [Rebecca F.] to serve five years in prison.”  State v. Rebecca F., supra. 

It then took up Rebecca F.’s second issue: the Circuit Court judge’s ordering her to pay restitution to her daughter, the victim of the identity theft.  State v. Rebecca F., supra.  The Circuit Court judge “awarded $10,000.00 to the victim `because of the attempts and time and the effort she has to make to try to rectify the wrongful credit aspect of [the identity theft]. That not only takes time and money and things like that so it is a restorative restitution[.]’” State v. Rebecca F., supra. 

On appeal, Rebecca F. argued that the restitution award to her victim was

not permissible under West Virginia Code § 61–11A–4 or West Virginia Code § 61–11A–5  of the Victim Protection Act of 1984, West Virginia Code §61–11A–1 et seq. [1984] (`Victim Protection Act ‘ or the `Act ‘). The defendant does not discuss these statutes in detail or cite any previous decisions from this Court in support of her argument.

Instead, [she] makes the general argument that `this $10,000.00 award of restorative restitution is punitive in nature and explicitly prohibited by the laws governing restitution.’ [Rebecca F.] further asserts that `the State in no way met its burden of proving that the $10,000.00 award of restorative restitution was necessary or cognizable under West Virginia Code § 61–11A–5.’

State v. Rebecca F., supra. 

The Supreme Court of Appeals found that her argument required it to examine the

Victim Protection Act, West Virginia Code §§ 61–11A–1 to 8. The Victim Protection Act governs restitution to direct victims of crime in criminal cases. West VirginiaCode § 61–11A–1 of the Victim Protection Act provides an extensive statement of the Legislature's intention `to enhance and protect the necessary role of crime victims and witnesses in the criminal justice process and to ensure that the state and local governments do all that is possible within the limits of available resources to assist victims and witnesses of crime [.]’ (Emphasis added)

This Court examined the Victim Protection Act in State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997), and held that a circuit court should ordinarily order a criminal defendant to make full restitution to victims of his/her crime when permitted under the Act. 

State v. Rebecca F., supra.  It also explained that

in State v. Whetzel, 200 W.Va. 45, 488 S.E.2d 45 (1997), this Court stated that the Victim Protection Act `predicates an award of restitution upon a defendant's conviction of a felony or misdemeanor and upon the “physical, psychological or economic injury or loss to the victim.”’ State v. Whetzel, supra. The Court further explained in Whetzel that

`the clear intention of the Legislature in enacting West Virginia Code § 61–11A–4(a) was to enable trial courts to require convicted criminals to pay all losses sustained by victims in the commission of the crime giving rise to the conviction. Any other interpretation would run counter to the legislative intent that ‘all that is possible’ be done, an intent set forth in West Virginia Code § 61–11A–1(b).’

State v. Rebecca F., supra. 

The Supreme Court of Appeals noted that here, Rebecca F. “pled guilty to eight felony counts of identity theft” and during the sentencing hearing “the victim described the psychological and economic injuries she has suffered as a result of the defendant's identity theft”.  State v. Rebecca F., supra.  This, apparently, is what the daughter said:

A mother and a daughter are supposed to have a trustworthy bond and my mother broke that bond in every possible way. Since I was 12 or 13 I have been getting calls from credit card companies. When I lived at my mother's house the children were not allowed to answer the phone, period, and if we did we got in a lot of trouble. Also, if we saw mail with our name on it we were not allowed to open it.

When I was around 14 I saw the mail and I had a credit card with my name on it and I asked my mom what it was. She told me that they send you credit cards before you turn 18 in preparation for turning 18.

When I moved into my father's house I started getting calls on my cellphone and at my grandpa's house all hours of the night, day and night, about bills that I owed that I had no idea about. I asked my mother if she knew what the calls were about and she said she did not know and wanted me to leave it at that.

I discovered that I could not rent a place due to my credit score and I had to rely on moving in with friends.

When the car that my father bought for me died and I needed to get a new one I could not get any financing and I had to borrow money from family. I could not even get a gas card due to my credit. To this day my family and I still get calls regarding bills that I owe. I cannot get any loans of any kind. I'm not even able to go to school right now due to this situation. In addition, I have been turned down for multiple good paying jobs due to my credit report and it has taken me over a year to find a job that pays more than minimum wage.

State v. Rebecca F., supra. 

The court then explained that “[i]n addition to the victim’s statement,” the

presentence investigation report also described the psychological and economic injuries the victim suffered as a direct result of [Rebecca F.’s] identity theft. Based on this evidence of psychological and economic injuries suffered by the victim, the circuit court concluded an award of restitution was appropriate. West Virginia Code § 61–11A–4(a) requires, absent a finding of impracticality, that a circuit court order a defendant to make restitution to any crime victim who has suffered a physical, psychological or economic injury.

Because there was a clear showing of psychological and economic harm suffered by the victim, we find that the circuit court did not abuse its discretion in awarding restitution to the victim.

State v. Rebecca F., supra. 

The Supreme Court of Appeals then took up the final issue: whether the amount of restitution the Circuit Court ordered was “proper.”  State v. Rebecca F., supra.  It explained that West Virginia Code § 61–11A–4(b) provides “specific instruction” to

a circuit court when formulating a restitution award resulting from property damage, bodily injury and bodily injury causing death. . . . West Virginia Code § 61–11A–4(b) does not address the specific considerations a circuit court should undertake when formulating a restitution award resulting from psychological or economic injuries or loss. 

West Virginia Code § 61–11A–5(a), however, contains general considerations a circuit court should undertake when determining whether to order restitution under the Victim Protection Act and in determining the amount of restitution to award. [It states that:]

`The court, in determining whether to order restitution under this article, and in determining the amount of such restitution, shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependents, and such factors as the court deems appropriate.’

State v. Rebecca F., supra. 

The court therefore held that West Virginia Code § 61–11A–4(a) requires a

circuit court, absent a finding of impracticality, to order a defendant convicted of a felony or misdemeanor causing psychological or economic injury or loss to a victim, to make restitution to the victim of the offense. West Virginia Code § 61–11A–4(a) does not contain specific factors a circuit court should consider when formulating a restitution award to a victim who suffers psychological or economic injuries pursuant to West Virginia Code § 61–11A–4(a).

Therefore, a circuit court formulating a restitution award to a victim who suffers psychological or economic injuries pursuant to West Virginia Code § 61–11A–4(a) should consider the factors set forth in West Virginia Code § 61–11A–4(a) of the Victim Protection Act. These factors include (1) the amount of the loss sustained by any victim as a result of the offense; (2) the financial resources of the defendant; (3) the financial needs and earning ability of the defendant and the defendant's dependents; and (4) such factors as the court deems appropriate.

State v. Rebecca F., supra. 

It then applied this standard to the Rebecca F. case, explaining that the

first factor we consider is the amount of loss suffered by the victim. The victim stated that [Rebecca F.’s] identity theft prevented her from obtaining student loans, housing, transportation and employment.

While these damages are difficult to convert into a specific dollar amount, it is abundantly clear that the victim has suffered substantial psychological and economic damages as a result of the identity theft.

As to the second factor, [Rebecca F.] has not argued that she lacks the financial resources to comply with the restitution order. Similarly, [Rebecca F.] has not argued that her financial needs or her earning ability would prevent her from complying with the restitution order. Based on these factors, we do not find that the circuit court abused its discretion by ordering [her] to pay $10,000.00 in restitution to the victim.

State v. Rebecca F., supra.  

Finally, the court noted that in Kelly v. Robinson, 479 U.S. 36 (1989), the U.S. Supreme Court said restitution is “an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have cause.” State v. Rebecca F., supra.  It ended its opinion by noting that “[r]equiring the defendant to pay restitution to her daughter will force her to “confront, in concrete terms” the significant harm her actions have caused her daughter to suffer.”  State v. Rebecca F., supra. 

If you would like to see photos of “Rebecca F.”, find out her full name and read more about the facts in the case, check out the news story you can find here.  The story you can find here adds some more details (such as the child abuse charges were based on allegations that she struck her children with a “broom, baton and other objects” and the fact that some of the identity theft charges were based on her using her ex-husband’s identity).