court of appeals

SPOKANE – An Omak man will be sentenced for the third time for a series of burglaries, thefts and acts of malicious mischief, the state Court of Appeals for Division 3 has decided.

Brandon William Cate was sentenced for the 2016-17 incidents but appealed his sentence. The appeals court remanded the case back to Okanogan County Superior Court for resentencing, but Cate then appealed that sentence.

In an unpublished opinion filed June 23, the appeals court again agreed with Cate and sent the case back to Superior Court for resentencing.

Cate was prosecuted in two cases, adjudicated by different juries, but sentenced the same day in both cases. At sentencing, the crimes were not treated as current offenses, with the result – based on his previous record and state sentencing guidelines – being an 88-month prison term.

On appeal, the appeals court reduced a theft conviction from second-degree to third-degree and remanded both cases because the cases should have been treated as current offenses, the court found.

Resentencing took place in 2019, with the result of Cate’s offender scores and standard sentencing being increased.

Cate didn’t object to the new calculations, but requested concurrent sentences instead of consecutive ones.

The trial court rejected the approach, reasoning that imposition of concurrent sentences would result in some of Cate’s offenses effectively going unpunished, said the appeals court.

“In explaining its sentencing decision, the trial court advised Mr. Cate that it was simply formalizing the previous sentencing decision,” said the appeals court. “According to the court, nothing was really changed from Mr. Cate’s perspective. ‘The sentence stays the same.’”

Superior Court Judge Chris Culp imposed exceptional, mid-range sentences to run consecutively, with the result being a 119-month total sentence.

Cate appealed again.

The appeals court found that the trial court had sufficient legal and factual basis to impose an exceptional sentence upward, but said the decision “was clearly excessive.”

The outcome “was contrary to the court’s stated intent” of keeping the sentence the same, said the appeals court. “The (trial) court explained it meant to impose the same sentence as what Mr. Cate had received prior to his successful appeal. Given the disconnect between the court’s comments and the sentence imposed, and in light of the fact that resentencing is necessary for Mr. Cate’s second-degree theft conviction, we remand for a full resentencing.”

The appeals court decision was written by Judge Rebecca Pennell with Laurel Siddoway and George Fearing concurring.

Cate’s attorney on appeal was Marie Jean Trombley, Graham. Okanogan County Prosecutor Arian Noma represented the state.

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